FINAL EXAM Flashcards
1
Q
Substantive Law
A
Creates, defines, and regulates legal rights and duties [“the what”]
2
Q
Procedural Law
A
States the rules for enforcing rights that exist because of substantive law [notice and right to be heard]
3
Q
Civil Law
A
Defines rights and duties that individuals owe to one another
4
Q
Criminal Law
A
Establishes duties and outlines offenses relating to the whole community
5
Q
Burden of Proof for Civil Law
A
Plaintiff must prove a preponderance of evidence
6
Q
Burden of Proof for Criminal Law
A
Plaintiff must prove guilt of the Defendant beyond a reasonable doubt
7
Q
Judicial Review (C)
A
Verifies constitutionality
8
Q
Common Law deals with:
A
Civil Disputes
9
Q
Common Law must be ___________ and ___________
A
stable; predictable
10
Q
Stare Decisis
A
the legal principle of determining points in litigation according to precedent, “to stand by the decisions”
11
Q
What type of law is Common Law under?
A
Judicial
12
Q
Equitable Remedies
A
Judicial relief that causes a party to either act or halt their current action
13
Q
Restatement of Law (J)
A
Summaries of the common law
14
Q
What areas are covered by restatements of law?
A
(CAPTT) Contracts, Agency, Property, Torts, Trusts
15
Q
Who is legislative law passed by?
A
Statutes
16
Q
Uniform Laws (L)
A
State statutes that have been passed to promote uniformity in some areas of the law
17
Q
Administrative Law
A
Branch of public law, agencies are given power by Congress to govern policies within Govt Entities
18
Q
Who creates Administrative Law?
A
Govt Agencies
19
Q
What does Administrative Law protect?
A
Public Health, Safety, and Welfare
20
Q
District Federal Courts
A
Trial level courts; every state has at least one
21
Q
State Court System (low to high)
A
- Inferior Trial Courts
- State (District) Courts
- State Intermediate Court of Appeals
- State SC
22
Q
Federal Court System (low to high)
A
- US District Courts
- US Intermediate Court of Appeals (Circuits)
- US SC
23
Q
US Court of Appeals
A
12 Judicial Circuits, hear from district courts
24
Q
What can the Court of Appeals do?
A
Reverse, Modify, Remand or Affirm lower courts
25
Court of Appeals decides questions of _______, not of _______
LAW, fact
26
Who can appeal in the Court of Appeals?
The losing party
27
US SC
Reviews Federal appellate (CoA) decisions and state supreme court decision
28
Specialty Courts Examples
Bankruptcy, Federal Crimes, Trademarks, Lawsuit vs US
29
Specialty Courts typically have
Exclusive federal jurisdiction
30
Inferior trial courts have no record of proceeding so if you lose,
You can ‘appeal’ by starting over in a district court
31
Another name for Trial Courts
County Court, District Court
32
Another name for Appellate Court
Court of Appeals
33
Supreme Court of State
Reviews decisions of other appellate courts,highest on chainlink of State Track
34
Inferior courts proceed over
Minor issues and small amounts of money
35
Jurisdiction
Authority to make a binding decision on parties involved
36
2 Pre-Reqs for BINDING Jurisdiction
Subject Matter AND Over the Parties
37
Concurrent Jurisdiction
State and Federal Systems have jurisdiction to hear the case
38
3 Types of Juristiction
Exclusive Federal, Concurrent, Exclusive State
39
When is there Concurrent Jurisdiction?
1. Federal Questions
2. Diversity of Citizenship and Amount over $75,000
40
In Personam Jurisdiction
Over person/entity
41
☆☆☆ PROCESS TO FIND JURISDICTION ☆☆☆
Subject Matter
1. Federal Exclusive?
2. Concurrent
i. federal question
ii. diversity
3. State Exclusive?
In Personam
1. “Resident”
2. Agreement
3. Long Arm Statute (“minimum contacts”)
42
Substances Due Process
What you're being charged with
43
Procedural Due Process
Notice and Opportunity to be heard
44
In Rem Jurisdiction
Over property ownership in the state
45
Quasi in Rem Jurisdiction
Attachment to the property
46
What does Plaintiff do to start a lawsuit?
File a petition or complaint
47
What does Defendant get to start a lawsuit?
Summons
48
Default Judgement
Defendant must respond in timely manner or Plaintiff automatically wins
49
Pretrial Procedure allows for a
Case to be decided if there is enough evidence to get a direct verdict
50
Purpose of Pre-Trial Discovery
Limit the amount of cases that make it to court
51
Voir Dire is an examination of:
Jurors to make sure they are not biased
52
2 Types of Alternate Dispute Resolutions:
Arbitration (binding), Mediation (non-binding)
53
Federalism (C)
Constitution gives enumerated powers to the Fed Govt
54
Federal Supremacy Clause (C)
Valid Federal Law > Conflicting State Law
55
Federal Preemption (C)
The Partial or Whole invalidation of a U.S. state law that conflicts with federal law
56
State Action
Non-Govt individuals infringing on constitutional rights
57
Commerce Clause
Fed Govt has broad and exclusive power to regulate commerce
58
Interstate
Between States
59
Intrastate
Within a State
60
The Commerce Clause can only _______ not __________ state regulations affecting interstate commerce
RESTRICT, stop
61
Govt can violate fundamental right if there is a ____________________
VALID REASON
62
Rational Relationship & example
Easy for Govt to violate (economic)
63
Strict Scrutiny & example
Hard for Govt to violate (fundamental rights)
64
Intermediate (limitations on govt) & example
Somewhat hard for Govt to violate (sex)
65
Procedural Due Process is protected by
5th and 14th Amendments
66
14th Amendment requires
All have equal protection under the law
67
3 Powers of Admin Agencies:
Rulemaking, Investigation/Enforcement, Adjudication of Controversies
68
Enabling statute must provide these opportunities before creating an admin agency:
Notice and right to be heard
69
What rules are enforced like a statute and must align with APA?
Legislative Rules
70
What type of trial does NOT get a jury?
HEARING PROCESS
71
Who holds a hearing trial and where?
Administrative Law Judge, not in court
72
In most cases, a crime must consist of ________ and ________
Actus Reus and Mens Rea (Intent)
73
What type of cause must be proven to get a warrent?
PROBABLE
74
3 Types of Subjective Crimes
(PKR) Purposefully (murder), Knowingly (murder, intent w victim), Recklessly (manslaughter)
75
3 Types of Crimes
(SOL) Subjective, Objective, Liability without Fault
76
Objective Mens Rea asks whether:
The reasonable person should have known of the risk
77
Typically, Liability without Fault results in:
Fines
78
Larceny
"trespassory taking" with intent to deprive
79
Embezzlement
Larceny by an individual in a position of trust
80
Robbery
Larceny w/ force (or threat of force)
81
Burglary
Breaking & entering, in a building, INTENT to commit felony
82
False Pretenses
Obtain property thru fraud, made with knowledge of falsity and intention to defraud
83
Forgery
Intentional Falsification of a document with intent to defraud
84
Extortion
Same as blackmail
85
Bribery
$ to a public official to influence decisions
86
Personal Crime Defense
Deadly force allowed
87
Property Crime Defense
Deadly force NOT allowed
88
Who brings about a criminal suit?
THE GOVT
89
Criminal suits GENERALLY do not:
Compensate the victim for harm done
90
Battery
Infliction of bodily contact
91
Assault
Infliction of fear for bodily harm, knowledge REQUIRED
92
False Imprisonment
Detained against will, no knowledge of escape, aware of confinement
93
Infliction of Emotional Distress
Intentional, no physical symptoms required
94
Libel
Defamation that isn't oral
95
Slander
Oral Defamation
96
Defamation
False statement of another to at least 1 third party
97
Absolute Defense against defamation
Court
98
Constitutional Defense against defamation
Public Figure
99
4 Types of Invasion of Privacy
Appropriation, Intrusion (eavesdropping), Public Disclosure of Private Facts, False Light (knows of falsity)
100
Nuisance
Non-trespassory, interference w enjoyment of land
101
Conversion
Exercising unlawful control over personal property
102
Disparagement
False, offensive statements about product/property, told to at least one party
103
Fraudulent Misrepresentation
Known false statement of fact, other party “justifiably relies” on, intends to cause an action
104
Negligence
Failure to exercise reasonable care
105
Difference between intentional torts and negligence
INTENT is NOT required for Negligence
106
4 Required Elements of a Tort
Duty, Breach, Proximate Cause, Harm
107
2 parts to Proximate Cause
Factual Causation and Foreseeability
108
When is there a legal duty?
Creates Danger, Special Relationship, Statute Requires Action
109
Example of Licensee
Social Guests
110
Examples of Invitees
Store customer, repairs
111
Duty of possessor for Licensee:
Warn of known danger that licensee is unlikely to discover
112
Duty of possessor for Invitee:
Protect against danger that possessor does (or should) know about that invitee is unlikely to discover
113
Contributory Negligence
If Plaintiff was negligent, no recovery
114
Comparative Negligence
Plaintiff can recover if less at fault
115
Assumption of the Risk
Plaintiff knew about risk so recovery is limited
116
Strict Liability
Defendant liable for harm even if not at fault
117
3 Categories that fall under Strict Liability:
Abnormally Dangerous Activities, Wild Animals, Defective Products
118
When is acceptance typically effective?
UPON DISPATCH
119
4 Elements of a K
(MCCL) Mutual Assent, Consideration, Capacity, Legality
120
Bilateral
One promise in return for another promise
121
Unilateral
One promise and one acceptance through action
122
Voidable
K may exist, voidable by innocent party
123
Void
No K is formed
124
Promissory Estoppel
Promise made by unharmed party that harmed party justifiably relied on AND harmed party was materially damaged due to change of position because of promise
125
Requirements for a Quasi K
Parties did not agree to contract, beneficiary wasn't involved, accidental party accepts benefits
126
Requirements for an Offer
(CID) Communicated, Intent, Definite
127
Exceptions to revoking an offer before acceptance:
Option K, Firm Offer, Unilateral
128
Other methods to end offer:
Death, Destruction, Illegality
129
Rejection is effective when
RECIEVED
130
Variant Acceptance
Acceptance that contains different terms than the offer
131
Defective Acceptance
Acceptance that doesn't align with time, method, or means
132
Mirror Image Rule
CL, Offer and Acceptance must be identical
133
Merchants typically use __________________ as an OFFER
Purchase Order Form
134
Merchants typically use __________________ as an ACCEPTANCE
Confirmation Form
135
VOID CONTRACTS
1. Physical compulsion
2. Fraud in execution
3. Contracts in writing
136
VOIDABLE CONTRACTS
1. Improper threat
2. Negligent misrepresentation
3. Innocent misrepresentation
4. Fraud in inducement
5. Undue influence
6. Mutual mistake
137
Undue Influence
Taking unfair advantage of a person by reason of a dominant position based on a confidential relationship
138
2 Basic Elements of Consideration
Legal Sufficiency, Bargained for Exchange
139
When must consideration be agreed upon?
When K is formed
140
Can unlicensed person recover under regulatory?
NO
141
Can unlicensed person recover under revenue?
YES
142
Covenant not to compete for BUSINESS
Look at time, geography, hardships (5 years)
143
Covenant not to compete for EMPLOYMENT
Look for reasonable time and reason to protect the business
144
Exculpatory Clause
Excuses a person in advance before they intentionally commit a tort
145
Unconscionable Contracts are
Procedural and Substantive, are grossly unfair
146
Can Courts remove an illegal part of a K and enforce it?
YES
147
Exceptions for Minors
Cannot disaffirm sale of land, cannot ratify K until 18
148
What incapacitated person makes a VOID K
Under guardianship
149
What incapacitated person makes a VOIDABLE K
Mental Illness
150
If K is "within" the SOF, it must be
IN WRITING
151
Suretyship
Promise made to creditor to pay debt of another, "If he doesn't pay, I will"
152
MUST BE IN WRITING:
Real Estate, UCC >$500, 1yr< complete, Suretyship
153
If possible to complete work within a year, Oral K is
ENFORCEABLE
154
Whats included in document of Oral K under CL
(PSTS) Parties, Subject, Terms, Signature
155
Whats included in document of Oral K under UCC
(IQIS) Intent, Quantity, Item, Signature
156
Harder to have mutual assent for CL or UCC?
CL
157
Parol Evidence Rule
If there is a final written agreement, can’t say K is wrong (even if there was a different oral agreement when signing K)
158
If consideration is paid when rights are assigned, it becomes
IRREVOCABLE
159
What is the one requirement to assign rights?
INTENT
160
Rights are _____________, duties are _____________
assigned, delegated
161
Minority Rule for Assignment of Rights
First to give notice prevails
162
Majority Rule for Assignment of Rights
First to have been assigned the rights prevails
163
2 Types of Intended Beneficiaries
Donee, Creditor
164
What Intended Beneficiary can enforce against the promisor ONLY
Donee
165
What Intended Beneficiary can enforce against both parties in the K
Creditor
166
Conditions
An uncertain event the happening or non-happening of it affects the duty of performance
167
If the condition is NOT triggered, then
There is no breach of K
168
Material Breach for CL means that
Party did not SUBSTANTIALLY perform, cannot ask for perfection
169
Material Breach for UCC means that
There is a breach if it is not perfect (perfect tender rule)
170
Anticipatory Repudiation
Back out of K prior to performance
171
How is a contract treated with anticipatory repudiation?
Cover or Wait
172
Commercial Impracticality
Performance can only be foreseen in unjust hardship
173
What situation generally discharges promisor by law?
Objective Impossibility
174
Monetary Damages are
Remedies at law
175
Can a party be awarded punative damages for a breach of K?
NO
176
Liquidated Damages
An amount of damages agreed to by the parties in the contract
177
Specific Performance
PERFORM
178
Injunction
STOP PERFORMANCE
179
3 Requirements for Agency Relationship existence
Agreement, P has some control over actions, worker will act on behalf of P
180
Equal Dignity Doctrine forces the agency agreement to
BE IN WRITING
181
Who normally is bound to a contract in a when the agent had actual authority and/or apparent authority?
PRINCIPAL
182
Fiduciary Duties
Loyalty, no competing, maintaining confidential info
183
Duties of P to A
(CIGR) Compensation, Indemnification, Good Faith, Reimbursement
184
Indemnification
"to make whole"
185
Duties of A to P
(ODIA) Obedience, Diligence, Inform, Account
186
2 Ways to Terminate Agency Relationship
Agreement or Operation of Law
187
Suing: Disclosed P
Directly sue P
188
Suing: Partially Disclosed P
Sue A then sue P, recover from one
189
Suing: Undisclosed P
Sue A, A reimbursed from P
190
Actual Authority, Disclosed
P – TP: bound
191
Actual Authority, Partially Disclosed
P – TP: bound
A – TP: bound
P – A: reimbursement
192
Actual Authority, Undisclosed
P – TP: bound
A – TP: bound
P – A: reimbursement
193
Apparent Authority, Disclosed
P – TP: bound
P – A: indemnity
194
Apparent Authority, Partially Disclosed
P – TP: bound
A – TP: bound
P – A: indemnity
195
Apparent Authority, Undisclosed
NONE
196
No Actual or Apparent Authority, Disclosed
A – TP: liable
197
No Actual or Apparent Authority, Partially Disclosed
A – TP: bound
198
No Actual or Apparent Authority, Undisclosed
A – TP: bound
199
2 Requirements for Apparent Authority:
Principal and Agent known relationship, 3rd Party reasonably believes Agent has actual authority
200
How apparent authority is cut off:
Death/Incapacity of Principal, Principal must notify in order to cut off
201
P can be liable for tort of his A if it was P who:
Authorized, Negligence, or Strict Liability
202
What is the proper format for a signature block?
XYZ Corporation
By: ___________________________
Name: Jason S. Smith
Title: President
203
Signature blocks help A avoid:
Personal Liability in K
204
When choosing a type of business, what factors should be considered?
(LETTCC) Liability, Ease of Formation, Taxation, Transferability, Control, Continuity
205
Sole Proprietorship
One person owns, unlimited risk
206
General Partnership/JV
Co-owned, for profit (split profits), Unlimited and Lose CC risk
207
Limited Partnership
One general partner and one limited partner, General: Unlimited Risk, Limited: Limited Risk, BOTH Lose CC
208
LLC
Members manage, Limited AND Lose CC risk, tax on personal only
209
LLP
A limited partnership in which the liability of the general partners has been limited to some or all of the partnerships obligations
210
Corporation
Managed by Board, Double Taxation for C Corp, Limited AND Lose CC risk
211
Shareholder Agreements in Publicly Traded Companies
Typically don't exist
212
Shareholder Agreements in Privately Traded Companies
VERY IMPORTANT
213
Entities are domestic to where they:
File their certificate of formation
214
Promoters
Starts the business
215
Incorporator
Signs the Articles of Incorporation
216
Subscribers
Purchase Stock
217
Names must be:
Unique, Not-confusing, have 'inc' or 'corp'
218
What is included in the TX certificates of formation?
Name, Agent, Address of Business
219
If the incorporation is defective, courts may
Pierce the Corp Veil
220
Piercing the Corp Veil is when:
Owners are held personally liable for the debts of the entity
221
PtCV comes from
Common Law
222
Secured Claim vs Unsecured Claim
Creditor can recollect collateral under secured claims
223
Automatic Stay
Creditors cannot try and collect debts from Debtors who have declared bankruptcy
224
First step to file for bankruptcy
Voluntary Petition is Filed by Debtor
225
If the creditor wants to be paid, they must file
Proof of Claim
226
Order of distributing money to claims
Secured, Priority, Unsecured, Debtor
227
Ch 7 Bankruptcy
Individual liquidation, trustee
228
Ch 11 Bankruptcy
Business reorganization, future business earnings pay off debt
229
Ch 13 Bankruptcy
Individual reorganization, trustee, future wages pay off some of the debt
230
What is a confirmation hearing?
A hearing to ensure that the bankruptcy plan is feasible
231
What is NOT protected under CRA1964
Age, Disability
232
2 Types of Sexual Harassment
Quid Pro Quo, Hostile Work Environment
233
ADEA of 1967 prohibits discrimination
In age (over 40)
234
ADA 1990 prohibits discrimination
For those with disabilities/handicaps
235
What amendment is OSHA stemming from?
4th
236
FLSA outlines laws relating to
Overtime, Minimum Wages, Child Labor (no one under 14)
237
WARN Act requires that
Employers with > 100 “full time” employees AND firing >50 employees at one location
238
Best way to solve international disputes?
Arbitration > Litigation
239
Business risk of Expropriation
Property taken without compensation
240
Business risk of Confiscation
Property taken and given compensation
241
4 Most important elements to be included in foreign contracts
Dispute Resolution, Choice of Law Provision, Language, Payment
242
Fixtures
Removal would damage realty, purpose to structure, peculiar to the realty
243
Ways to Transfer Personal Property
(GSAW) Gift, Sale, Accession, Will
244
Requirements for transfer to qualify as a gift:
Delivery, Intent to Gift, Acceptance
245
Accession Example
Cows, Interest
246
If mislaid, who has title?
Possessor of space where item as left
247
If found underground, who has title?
Landowner
248
Fee Simple
No associated future interest
249
Fee Simple Defeasible
Always associated future interest
250
Anyone with future interest gets what after life estate owner’s death?
Fee Simple
251
Life Estate
Gives the property to the person "for life" and identifies what should happen to it after that person dies
252
Leasehold Estate
Contract for possession/use
253
If interest in Joint Tenancy is transferred to someone not in JT, JT turns into
Tenancy in Common
254
Tenancy in common has NO
right of survivorship
255
Easement
Interest that provides the easement holder permission to use another person's land
256
Requirements for a valid deed:
In writing, delivery (or proof to), grantor signs, legal description of land
257
A deed is a
CONTRACT
258
General Warranty means Grantor has agreed to
Defend title all the way back to patent
259
Special Warranty means Grantor has agreed to
Defend title to the property for encumbrances/transfers they made themselves
260
Quitclaim Deed means Grantor has agreed to
Simply transfer the title if they have it, they do not defend the title, they are not liable
261
Recordation
Providing a county authority with the original document of the deed
262
4 Requirements for a Will
1. Written
2. Signed
3. Witnesses
4. Capacity
263
Testator
Person who dies
264
Executor
Opens the probate
265
2 Ways for a Will to be Revoked
By Testator, By Operation of Law (marriage, child, destruction)
266
Interstate Succession
There is no Will so property is distributed based on state law
267
Per Capita is split:
Evenly between all groups
268
Escheat
If there are no heirs to the property, the government can obtain it
269
Probate
The proving of a will
270
What usually is administered by the estate after death?
Joint Tenancy Assets and Life Insurance
271
Nuncupative Will
“Death bed”, oral, ONLY personal property
272
Holographic Will
Entirely in Testator’s handwriting, no witnesses
273
Are Living Wills or Powers of Attorney wills?
NO
274
Living Wills/Power of Attorney gives:
Direction on medical decisions and what a party would want
