BLAW Flashcards
Constitution
Supreme law of the land
Statutes
federal, congress, state legislature
Regulations
Adminsitrative Agencies
Common law
Case law
exec orders
president
Stare deicisies
look back at past answers to come to a conclusion
Precedent
legal principal, or rule that is CREATED by a higher court decision
Criminal Burden of Proof
prosecutor, beyond a reasonable doubt
Civil burden of proof
Plantiff, by preponderance of evidence
professional code of ethics
for some professions (CPAS, lawyers, doctors)
Code fo ethics
must past ethics exam, follow ethical code
Article 4
Full faith and credit clause
Full faith and credit clause
You get a judgement in 1 state every state must enforce it
To assert first amendment violation
one party must be a state actor
public schools
are a state actor
Protected free speech
symbolic speech, hate speech
Unprotected speech
call to harm or violence
free exercise of religon
1st ammendment
no establishment of religon
in public
Us Supreme court
Highest appellate court
Advantages of ADR
faster than trial, cheaper, confidentiality
Arbitration
Neutral 3rd party, usually binding not appealable, 3rd party comes to verdict
Mediation
Neutral 3rd party, often required by judge before court date is scheduled
Securities act of 1934
insider trading
Wrongful interference with a contract requirements
valid contract exists, defendant knew of this valid contract, defendent intentionally induced breach,
Damages avalible in tort case
Compensatory and punitive
Strict product liablity
privity of contract not required, cannot be waived, defendant must be professional seller, product must be unreasonably dangerous, product cannot have been modified
how to obtain trade mark
federal registration with USPTO, common law, state registration
how to obtain copyright
federal registration with uspto, common law
How to obtain patent
federal registraation with USPTO
license
contract
Communications decency Act
SEC 230, ISPS may moderate in good faith, blocking objectionable content, ISP is not a publisher of users posts
Digital millennium Copy right act
ISPs have protection when they unknowingly host copyright infringing material, may send take down notice to ISP
Requirements of a Valid Contract
Agreement, consideration, capacity, legality
Statute of Frauds
require contract to be in writing
required in writing
sale of land, contract which cannot be completed within the year, promise to stand behind the debt of another, sale of a good greater than 500.
The condition precedent
if condition isnt fulfilled, party is discharge from act
UCC
Uniform Commerical Code
model statue adopted in all states, applies to sale of goods
UCCF
Secured creditor
terms of loan, identifies collatoral, allows repossession/foreclosure if debtor defaults, creditor may also sue for breach of contract, deficnecy judgement
Unsecured creditor
no collatoral identified, no rihgt to repossess, creditors only remedy is to sue for breach of contract
Fixed rate mortage
rate stays the same throughout the life of the loan
ARM
stays the same for 3ish years then sky rockets
Foreclosure procedure
Acceleration clause, notice of default, public auction, right of redemption, defienciy judgement
Self help
must be personal property, no real property
Self help procedure
may foreclose on your own but cannot breach the peace
Where to file bankruptcy
US Bankruptcy court, appeal to US district court
CH.7
non exempt assets to bankruptcy trustee, trusteee liquadates assets, trustee pays creditors in order of the bankruptcy code, court issues discharge order, terminating most remaining debts
Ch.13
trustee verfies debtors postion, trustee recommends a payment plan, court order re payment plan, debtor pays pursuant to the plan for 3-5 years
debtor
borrower ofmoney
fraudulent transfers
during 2 years before date of bankruptcy, debtor made a trasnfer to defraud creditor
preference
trustee may recover any payment debtor made within 90 days
Denial of discharge
Destorying or falsiying records, making a false statement under oath, secretly transfering or concealing property, failing to explain loss of assets, having recieved a discharge 8 years prior
Sole proprietorship
At will, no seperate legal entity, owner pay personal income tax forms, unlimited personal liablity, no filings
LLC
File with sec of state, seperate legal entity, pass though taxation, limited liablity
Publicly held companies
traded on a stock exchange
close companies
held by private owners
Express Agency
Agent has been expressly told how to act for the principal (P liable)
Implied agency
Got to end result for principal (P liable)
Apparent authority
Agents conduct leads 3rd party to believe that agent has authority to act for the principal (p Liable)
Ratification
Agent does not have authority but pricipal approves after fact
Employment at will
may terminate employment for any reason or no reason
Exceptions to employment at will
Public policy (jury duty), contract, statutory violations
Sarbanes Oxley act of 2002
Protects “whistleblowers” of private companies whose shares are publicly traded
FLSA stands for
Fair labor standards act
FLSA
Minimum wage, overtime, youth labor laws
overtime pay
Pay rate x 40= normal
pay rate x 1.5 x hours overtime= OT
Normal + Ot= wage earned
FMLA
employees who have worked over a year can take up to 12 weeks unpaid leave for family, medical, military emergency
Civil rights act protected classes
Race, color, religon, gender (sex, sexual orientation) , national origin,
Not protected classes
age, weight, martial status
Disparate Impact Theory
barriers to employment (tests or other recs) that 1) exclude a protected class and 2) are unrelated to the job performance violate title 9 regardless of the intent
Griggs V Duke Power Co
Disparate impact theory
Process to file a claim BEFORE you can file in court
- file complaint to the EECO within 180 days, EEOC will facilitate settlement, represent party in litgation, or issue a right to sue letter
Federal Trade Commission (FTC)
enforces truth in advertising laws
Deceptive s
Falsely appearing to be based on scientific evidence, claims based on half truths
FTC may file a lawsuit in court seeking
injunction, freeze defendants assets, get compensation for victims
Not deceptive
puffery (vague generalizations and obvious exaggerations)
Truth in advertising lawsuits
can be brought by FTC or consumer
Texas deceptive trade practices act
allows private plaintiffs to recover damges x 3 from the defedndant
Influencers duty to diclose
finacial, employment, personal/family relationship with the brand
finacial relations also apply to
discounts or perks
No relationship with brand=
No disclosure
FTC says disclosures should be obvious
not hidden in ANY medium
Food Safety
enforced by FDA
FDA requires
food businesses to identify food safety hazards, have safety controls, and monitor effectiveness
real property
land, buildings, plants, mineral/air rights
personal property
moveable like a car
fixtures
built in bookshelf, ceiling fan
real estate deed
used to convey real property
Easements
the right to make limited use of property
- express written in deed
Necessity Easement
easement provided when property is landlocked
restrictive covenants
HOA, limits property usage
Adverse possession
Open/notorious possession, actual/under claim of ownership, continuous, for statutory period
Eminent domain
Gov taking of private property for 1) public use and 2)paying just compensation
Kelo v City of new london
economic development is a public use
Zones
residential, commercial, industrial, conservation
Variances
require a public hearing
