Blaw Final Exam

Front 1

Where does law come from?

Back 1

-British common law system
-Precedents of English Judges
-Cases decided by judges (most important aspect)

Front 2

Double Jeopardy

Back 2

1. Can NOT be tried twice by same court
2. CAN be tried in 2 different courts for same crime
(State and Federal)
(Civil and Criminal)

Front 3

Doctrine of State Action

Back 3

-Government can NOT interfere with your fundamental freedoms
-Companies CAN

Front 4

Fundamental Freedoms:

Back 4

-Anything in the Bill of RIghts
-Due Process (Guarantee day in court)
-Equal protection (everyone treated same way. Must justify is treated differently) (Health safety and welfare)
-Freedom of _______

Front 5

Burden of Proof in Criminal Case?

Back 5

Beyond a Reasonable Doubt
-at least 95% sure
-"Charged"

Front 6

Burden of Proof in Civil Case?

Back 6

Preponderance of the Evidence
-at least 51% sure
-"Sued"

Front 7

Precedent (Stare Decisis)

Back 7

-Judge required to follow prior decisions of higher judges in their jurisdiction
-DONT look to own, or lower courts

Front 8

Contingency Fee Lawyer

Back 8

Paid when win a case
-ONLY: Seeking monetary recovery in civil case

Front 9

Jury rules on _____
Judges rules on____

Back 9

Fact
Law

Front 10

Voir Dire

Back 10

Interrogating potential jurors

Front 11

Peremptory Challenges

Back 11

Cannot purge jury on basis of RACE or GENDER

Front 12

Forum Selection Clause

Back 12

Solves cases regarding internet jurisdiction

Front 13

Personal Jurisdiction

Back 13

May be tried in state you live in
-Must have minimum contacts to be charged in another state (working)

Front 14

Trial Process

Back 14

Complaint: Filing document called complaint
Service of Process: Defendant is notified of lawsuit
Answer
Discovery: Prepare for trial

Front 15

Deposition

Back 15

Interrogation of someone you expect to testify at trial
-Not in court room
-Not in lieu of witness testifying in court
-Under oath
-Court reporter in room

Front 16

State Court System

Back 16

-Trial Court
-Appellate/Court of Appeals
-Supreme Court
(Must start at lowest; and highest is Supreme)

Front 17

Federal Court System

Back 17

-District Court/US Trials Court
-US Circuit Appellate/US Circuit Court of Appeals
-US Supreme Court

Front 18

Federal Court Subject Matter Jurisdiction

Back 18

1. USA in question (ONLY in Fed court)
2. Federal Question
Diversity of state citizenship IF $75,000 or more

Front 19

Summary Judgment

Back 19

Before trial
-Win via matter of law

Front 20

Directive Verdict

Back 20

During trial
-One side does not have enough evidence
-After plaintiff speaks

Front 21

Judgment NOV

Back 21

After trial
-Rendering decision because jury was obviously wrong
-Based on facts, emotions, lack of paying attention

Front 22

Most important aspect of common law?

Back 22

Cases decided by judges

Front 23

Marbury vs Madison

Back 23

Established Judicial Review
-Said Judicial Branch is the ULTIMATE authority
(congress cant overturn)

Front 24

What happens when the same case is taken to a different court?

Back 24

Case preceded under normal circumstances

Front 25

Jurisdiction that is always Federal

Back 25

USA is a question
Bankruptcy
Patents
Copyrights

Front 26

State or Federal Jurisdiction

Back 26

Trademarks
Federal Question
Constitution
Diversity of citizenship over $75,000

Front 27

The judge can only control the outcome in a _____

Back 27

Civil case
(Summary J., Directive V., Judgment NOV)

Front 28

Suing = ____ ____ ____

Back 28

Seeking monetary damages

Front 29

Mediation

Back 29

A third party comes to help resolve case
-Never binding

Front 30

Arbitration

Back 30

A third party comes in and decides who is right or wrong
-Binding

Front 31

Tort

Back 31

An injury to your person, reputation, or property
-Comes from case law

Front 32

Restatement of Torts

Back 32

Summary of the common law of torts

Front 33

Assault

Back 33

Apprehension of harmful physical contact
-See punch coming
-Toy Gun

Front 34

Battery

Back 34

Physical harm, not dealing with apprehension
-Punched

Front 35

Tort of Outrage

Back 35

Infliction of emotional distress
-Must be extreme and completely intolerable in society

Front 36

Appropriation

Back 36

You have the right to sue for someone using your name of likeness of monetary gain

Front 37

Falso Imprisonment

Back 37

Holding someone against their will
-Exception: Shopkeeper's Privilege

Front 38

Shopkeeper's Privilege

Back 38

Think they are stealing. Holding for reasonable amount of time to see if they actually were stealing.

Front 39

Defamation

Back 39

False verbal or written statement about someone's reputation that damages their reputation in the eyes of a third party
-Doesnt have to intend harm

Front 40

Defamation with a public figure

Back 40

Must prove malice
-knowingly false

Front 41

Conversion =

Back 41

Theft

Front 42

Conversion

Back 42

Can sue for monetary damages for stealing as well as criminal charges

Charge with theft
Sued with conversion

Front 43

Elements of a Negligence Case

Back 43

Duty
Breach of Duty
Causation
Damages

Front 44

Comparative Fault

Back 44

Only get paid percent you weren't responsible for

Front 45

Assumption of the Risk

Back 45

If you are fully aware of the hazards you may not hold another party responsible

Front 46

Shannon vs. Ashworth

Back 46

Merchant who knowingly sells alcohol to minor is responsible for injuries
-Reverses long line of Arkansas cases
-Showed that Supreme court can change the law by refusing to follow established precedents

Front 47

Damages Provided in Tort Cases

Back 47

-Compensatory (back in same position) (intentional and unintentional) (extra money had to pay because happened)
-Punitive (punish person) (only in intentional)
-Arkansas places caps on them

Front 48

Requirements to make a contract

Back 48

Mutual Agreement
Consideration
Capacity (understand contract)
Legal

-Doesnt have to be fair
-Gambling/raffel = unlawful
Minors dont have capacity; can cancel at any time

Front 49

Pre-Existing Duty Rule

Back 49

-Consideration says there must be an exchange for a contract to be binding
-You cannot demand more money to finish a project; even if they agree to award they dont have to pay unless you receive something extra
-Boss doesnt have to give a promised bonus unless something extra is done

Front 50

Contract and Tort law comes from ____ and _____

Back 50

Common; Case

Front 51

Restatement of Contracts

Back 51

Document containing key contract laws

Front 52

Uniform Commercial Code Article 2

Back 52

Same laws apply to sale of products in all states
-Only with sale of GOODS
-Not land
-Not service

Front 53

Bilateral

Back 53

Promise for Promise
-Sales
-Money for Good

Front 54

Unilateral

Back 54

Promise for Act
-Money for good
-Have to actually do the act to create contract

Front 55

Executed vs Executory

Back 55

Fully performed vs not finished

Front 56

Acceptance

Back 56

-Offer may be revoked at any time up until it is accepted
-Even in you say it is irrevocable: can still withdraw at any time
-Exception: If you are paid to keep an offer open than you may not revoke the offer

Front 57

Mailbox Rule

Back 57

When you SEND (in own mailbox) the acceptance of an offer is the time you create the contract
-NOT when it is received

Front 58

Contract Interference

Back 58

Illegal to attempt to get someone to breech a contract so you may gain from it

Front 59

Lucy vs Zimmer

Back 59

If a reasonable person determines that the men intended to make an offer, then they made an offer
-Must be an manifestation of intent to make contract

Front 60

Parole Evidence Rule

Back 60

May not use oral testimony to contradict a clearly written contract

Front 61

Statue of Frauds

Back 61

Contracts that must be in writing
-Sales of land
-Impossible to complete within 1 year
-$500 or more in sale of goods
-Paying someone else's debts

Front 62

Contract will be ended by termination of law if:

Back 62

-Illegal
-Preforming party goes bankrupt
-Statue of limitations has been reached
-Becomes impossible to perform

Front 63

Satisfaction Doctrine (obj. vs sub.)

Back 63

Objective Standard: If the product is measurable and is passes without objection then you must pay

Subjective Standard: If a product is not measurable they if you dislike it you do not have to pay
-Food
-Paintings
-Music

Front 64

Substantial Performance Doctrine (major vs minor)

Back 64

Major Deviation (Material Breach) -some aspect of the contract is not even close to what you were supposed to do
-Dont have to pay

Minor Deviation (Minor Breach) -contract is performed, but small aspects are missing
-Pay contract less the cost of damages

Front 65

Types of Remedies in Contract

Back 65

Equitable
Compensatory
Consequential

Front 66

Equitable Remedy

Back 66

Seeking something besides money
-Looking for specific performance of an act or injunction

Front 67

Consequential Damages

Back 67

Money lost from expected income from breach of contract
-Breaching party must know about consequences beforehand
-Must attempt to minimize losses

Front 68

Liquidated Damages Clause

Back 68

Specifies the amount the breaching party will owe if contract is breached
-Must be reasonable to be enforced

Front 69

Condition Precedent

Back 69

Condition that must be satisfied before you are bound to the contract, if the condition is not satisfied then you are not liable for the contract

Front 70

General Partnetships

Back 70

-Established by UPA
-Does not pay Fed. Income Tax
-Does not pay limited liability
-No filing required
-Each partner can be held liable for all debt
-Has implied authority to make contracts for the partnership
-Losses and Profits divided evenly unless stated

Front 71

DO NOT pay federal income tax and HAVE limited Liability

Back 71

-LLP (professionals for tort protection) (state registered)
-LLC (no size limit) (register with state)
-Sub S (only in one state)

-Have to register (have limited liability)

Front 72

Corporations

Back 72

-Pay Fed. Income aTax
-Have Limited Liability

Front 73

Shareholders

Back 73

-Own the company
1. Amend articles
2. Elect board of directors
(preferred stockholders: receive dividends first)

Front 74

Directors

Back 74

1. Run company (anything else)
2. Hire officers
3. Dividends

Front 75

Articles of Incorporation NEVER include:

Back 75

Names of officers or directors

Front 76

Actions against corporations

Back 76

1. Piercing the Corporate Veil
-Action by creditors taken when the business has done something wrong (commingling of funds)
2. Business Judgment Rule
-Shareholders hold directors responsible for losses acquired when poor business judgment is used

Front 77

Principal

Back 77

Boss

Front 78

Agent works for

Back 78

Principal

Front 79

Employee/Servant

Back 79

Agent is being supervised and controlled by princ.
-Principal is secondarily responsible

Front 80

Independent Contractor

Back 80

Agent is not being supervised of controlled by princ.
-Not liable for agents actions

Front 81

Taylor vs Gill

Back 81

"Was the friend a servant of independent contractor?"

Front 82

Ways to Create Agency Relationship

Back 82

Express Authority (giving specific directions to what authority is)
Implied Authority (authority that normally comes with job) (company responsible for agents actions)
Apparent Authority (impostor) (princ. only responsible if they had no way of knowing)

Front 83

Ratification

Back 83

Principal approves an unauthorized act, now liable
-Doesnt matter who they told

Front 84

Tort Liability

Back 84

In order for the principal to be responsible for agent's torts:
1. Agent must be supervised and controlled
2. Agent must be under course and scope of employment

Front 85

Contract Liability

Back 85

When signing a contract for the principal, an agent must disclose that he is only an agent, for only the principal is liable for the contract
Ex: Only signed own name: Them and company responsible
Ex: Name and Company: Only company

Front 86

Eminent Domain

Back 86

Government can use land for public use
-Kelo Case: questioning public use

Front 87

Adverse Ownership

Back 87

Occupy land openly for a certain amount of time, then you gain ownership
-Not in good faith

Front 88

Easement

Back 88

Acquiring limited se of someone's land

Front 89

Life Estate

Back 89

You designate a person who will inherit your estate upon your death.
You have the right to sell your interest and the remainderman has the right to sell his interest.

Original: can sell interest, but person can live there during original owners life time

Front 90

Restricted Covenants

Back 90

Restricts future use of the land after you sell it

Front 91

Race Notice

Back 91

When land is sold twice, whoever records the deed first gets the land

Front 92

Realtor Commission

Back 92

Must be pain when:
1. House sells while under contract
2. Offers full contract price, even if rejected

Front 93

Fee Simple Absolute Ownership

Back 93

Highest and most complete form

Front 94

Tenants in Common

Back 94

Most common
-Family inherits land

Front 95

Tenants by Entirety

Back 95

Land goes to spouse

Front 96

Joint Tenants

Back 96

Land goes to other owners upon an owners death
Rules:
1. Must have same percentage of ownership
2. Purchased property at the same time
3. Family inheritance is never allowed

Front 97

Patents

Back 97

-Inventions
-20 years
-File with Federal Patent Office

Front 98

Copyrights

Back 98

-Artistic works
-Author's life; plus 70 years
-File through common law or federal

Front 99

Trademarks

Back 99

-Fanciful
-Indefinite, last forever
-File through common, state or fed

Front 100

Cyber Squatting

Back 100

Use or sell a domain name to a person who already has the rights to that name
-Sued
-Wipo

Front 101

WIPO

Back 101

wipes offending site off internet
-Does not award monetary damages or criminal sanctions
-Turns domain name to successful plaintiff

(faster and cheaper than court)

Front 102

Fair Use Doctrine

Back 102

-Purpose
-Nature of the copyrighted work
-Amount
-Impact/Effect of use in market