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BLAW 302 > EXAM 1 > Flashcards

EXAM 1 Flashcards

1
Q

Formalism

A

An act is either right or wrong, always and in every situation. Ethical systems based on an absolute morality

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2
Q

Consequentialism

A

An act is right or wrong not based on the act itself, but on the consequences of it for everyone involved.

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3
Q

Deductive Argument Structure

A 
Major Premise (Rule)
Minor Premise (Facts)  
Conclusion
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4
Q

Relationship between law and ethics

A

Law is what you can/can’t do, ethics is what you should/shouldn’t do

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5
Q

civil vs. criminal cases

A

Civil cases: between people (including businesses)
Breach of contract or tort cases
If you lose…pay damages to the other party
Maybe even “punitive damages” if it is a tort case
Occasionally some other kind of relief (order to do/not do something)

Criminal cases: between government and person (or business)
Government proves person/business committed wrong against society
If you lose…punishment (jail or fine paid to government)

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6
Q

substantive vs. procedural law

A

Procedural law - Laws about how the cases proceed through courts or about how laws are made. There are federal rules of procedure for the federal courts, and each state has its own set of procedural rules for its courts.

Substantive law - The laws about how we interact with each other and the government. Courts will apply substantive law from outside its jurisdiction, depending on where the dispute arose. (Example: A Missouri court can apply Kansas substantive laws when appropriate. A federal court can apply state law, and a state court can apply federal law.)

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7
Q

Statutes (state and federal, and how to read one)

A

federal and state

First, just figure out what the main point is. Then figure out all the definitions and exceptions

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8
Q

Ordinances (city and county)

A

enactments by counties and municipalities – e.g. zoning. Generally to “promote the safety and general welfare” of the community

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9
Q

Executive orders (state and federal)

A

president or state’s governor implements the law, and has some power to issue executive orders to do so. Source of conflict.

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10
Q

Regulations

A

regulations and decisions of administrative agencies at both state and federal level

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11
Q

Common law

A

Cases decided by courts (i.e. judges and justices) on the basis of precedent. Key concept = stare decisis

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12
Q

Common law precedent

A

a principle or rule established in a previous legal case that is either binding on or persuasive for a court when deciding subsequent cases with similar issues or facts.

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13
Q

Common law stare decisis

A

Let the decision stand

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14
Q

FIRAC method

A 
F - facts
I - issue
R - rule 
A - analysis 
C - conclusion
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15
Q

Conflicts among sources of law and resolution

A
  1. Federal law defeats state law…assuming both federal and state governments have the right to legislate on the subject
  2. Constitution defeats statute or common law
  3. Statute defeats administrative regulation or rule
  4. Statute can defeat common law……but the courts (common law) then interpret the new statute and determine whether it violates the Constitution.
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16
Q

ADR

A

Alternative dispute resolution

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17
Q

Negotiation

A

negotiate a settlement agreement

can use a lawyer or not, informal process

*bar nunn & parents example

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18
Q

Mediation

A

non-binding use of a neutral to try to facilitate a settlement agreement

More likely to involve lawyers, but not always.
Sometimes required as part of court process.
Mediators use different techniques (caucus, mediator proposal, facilitative, evaluative)
Focus groups or mock juries are another (fairly rare) strategy

If a settlement agreement that results from it, then the settlement agreement is a binding contract

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19
Q

Arbitrator

A

an independent person or body officially appointed to settle a dispute. Whatever is decided is binding.

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20
Q

Federal Arbitration Act

A

an act of Congress that provides for judicial facilitation of private dispute resolution through arbitration

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21
Q

Arbitration

A

binding non-court resolution (aka “rent a judge”).

Parties pay a neutral third person(s)—the arbitrator(s)—to DECIDE the dispute for them.

Often cheaper. Less formal than litigation, more formal than mediation. Parties typically present their positions in papers.

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22
Q

Class action

A

Plaintiff(s) file a lawsuit on behalf of themselves and all other people who have a similar claim against the defendant.

Some companies will have an arbitration clause that you aren’t able to sue them to avoid class action

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23
Q

Federal Arbitration Act

A

an act of Congress that provides for judicial facilitation of private dispute resolution through arbitration.

agreements to arbitrate are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”

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24
Q

Awards

A

At the end of the process, the arbitrator issues an award that resolves the case. Sometimes the award includes findings of facts and reasons; sometimes not.

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25
Q

Contractual agreements to arbitrate

A

Courts generally uphold contractual agreements to arbitrate instead of litigating

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26
Q

Litigation

A

Go to court to get a decision that is binding (though subject to appeal on legal grounds

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27
Q

Limits on courts power

A

Can only decide a “genuine case or controversy” – cannot issue an “advisory opinion” when there is no live dispute.

Plaintiff has to have a real stake in the outcome of the case (“standing to sue”)

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28
Q

Jurisdiction

A

A court’s power to hear and decide the case.

Different kinds of courts have jurisdiction over different kinds of cases, depending on

  1. Type of case (some states assign separate courts to criminal/civil/divorce/estate matters; bankruptcy courts are specialized courts; federal courts have limited jurisdiction)
  2. The amount at stake (county and small claims courts often have limited $ jurisdiction)
  3. Where parties reside and where the events related to the dispute happened
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29
Q

2 types of jurisdiction

A
  1. Subject-matter jurisdiction – can this kind of court hear this kind of case?
  2. Personal jurisdiction – is it fair to make these parties litigate in this court? (e.g. does this defendant have sufficient connection to this place to make it fair to require them to go to court here?)
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30
Q

Federal subject matter jurisdiction

A

FEDERAL (United States) court system – LIMITED subject-matter jurisdiction: Can only hear cases that either:

  1. involve question of federal law (“federal question jurisdiction”) OR
  2. have plaintiff/defendant from different states and more than $75K at issue (“diversity jurisdiction”).

VS.

STATE court systems – BROAD subject-matter jurisdiction: Can hear almost any kind of case (contracts, torts, etc) about state or federal law.

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31
Q

Federal question jurisdiction

A

federal question jurisdiction is the subject-matter jurisdiction of United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party.

32
Q

Diversity of citizenship jurisdiction

A
  1. Complete diversity is required (not even one defendant can be a citizen of the same state as even one plaintiff).
  2. A corporation is a “citizen” of both its place of incorporation and its principal place of business (usually where the business is headquartered).
  3. Even if the case meets the diversity of parties requirement, diversity jurisdiction only exists when there is at least $75,000 at stake in the litigation. (Otherwise, the case stays in state court even though the plaintiff and defendant are from different states.)
    * 75k rule only applies to diversity jurisdiction
33
Q

Concurrent Jurisdiction

A
  1. For diversity cases and most federal question cases, both state courts and federal courts are empowered to hear the case. (concurrent jurisdiction)
  2. The plaintiff can choose to file in either state or federal court, but a defendant may decide to “remove” a case from state court to federal court if there is federal jurisdiction.
34
Q

Personal & in personal jurisdiction

A

It is not always fair for the defendant to just have to go to court in whatever state the plaintiff files the suit. So…

For either state or federal court to have personal jurisdiction, the parties must have minimum contacts with the state where the case is litigated.

Defendant is subject to suit in any state (whether federal court or state court) where:

  1. Defendant is “at home”; or
  2. Def. is served with a summons while in that state; or
  3. Defendant’s conduct relevant to the suit occurred in that state:
    - committed the harm (tort) at issue in the suit in that state, or
    - owns the property at issue in the case in that state, or
    Entered into the contract or business at issue in the case, in that state.
35
Q

12 Steps of Civil Procedure

A
  1. Hiring a lawyer
  2. Summons & complaint
  3. Motion to dismiss (sometimes)
  4. Answer (maybe counterclaim or cross-claim)
  5. Reply to counterclaim/cross-claim?
  6. Disclosures
  7. Motion for summary judgment?
  8. Trial
  9. Verdict
  10. Appeal
  11. Petition for certiorari
36
Q

Attorney-client privilege and limits

A

Not required to disclose to the other side your conversations with your attorney.

BUT:
If you disclose your attorney/client communications to some third party (who is not the lawyer or the client), then the privilege does not apply. Facts do not become privileged just because you tell them to your attorney.

37
Q

Legal hold

A

should be entered in most cases before litigation even commences. Instructs everyone in the organization not to destroy evidence. Emails, voicemails, files, etc.

38
Q

Plaintiff

A

Business/Individual that brings the suit

39
Q

Defendant

A

Individual/business the suit is brought against

40
Q

Litigation Process

A
  1. Summons
  2. Complaint
  3. Motion to Dismiss
  4. Answer - Counter-claim/Cross-claim
  5. Disclosures
  6. Discovery
  7. Motion for Summary Judgment
  8. Trial
  9. Appeal
  10. Res judicata
41
Q

Counter-claim

A

part of the answer - (claims against the Plaintiff)

42
Q

Cross-claim

A

part of the answer - (claims against other Defendants - like bar nunn)

43
Q

Disclosures

A

Most systems require that parties make disclosures without waiting for the other party to make requests.

MUST tell the other party about:
People who know facts about the case
Documents (or kinds of documents) relevant to the case
Insurance policies that apply.

44
Q

5 types of discovery

A

Either party can require production of any documents, witnesses, materials, examinations, etc. that could lead to the discovery of admissible evidence.

  1. Interrogatories - written questions
  2. Requests for admission - admit/deny facts
  3. Requests for production of documents
  4. Requests for inspection - mental/physical
  5. Depositions
45
Q

Trial Process

A
  1. Voir Dire (Jurors may be struck for cause, or by peremptory strikes)
  2. Opening Statements
  3. Plaintiff’s case (direct examinations, cross-examinations, re-direct)
  4. Defendant’s case (same thing, but for Defense side)
  5. Closing Statements
  6. Jury Instructions
  7. Jury and/or judge deliberates
  8. Verdict and Judgment
46
Q

Voir Dire

A

a preliminary examination of a witness or a juror by a judge or counsel.

*to tell the truth

47
Q

2 types of Witnesses

A
  1. Fact
  2. Expert
    * issues with eye-witness - table example, memory is tricky & can produce false memories
48
Q

Appeal

A
  • first appeal is a right to hear, after that not guaranteed
  • Must appeal through the system you are in (state/federal)
  • Deals with LAW, not usually with facts
  • Process: briefing, argument, court decides (often a panel of judges)
  • Result: Court affirms, reverses, or remands
49
Q

Petition for certiorari to the supreme court

A

A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. Supreme Court usually accepts only if there is a “circuit split.” End of the line…can’t start over – res judicata.

50
Q

Res Jusicata

A

a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.

51
Q

Contract

A

Legally enforceable promise or set of promises

52
Q

5 components of contract formation

A
  1. Offer
  2. Acceptance
  3. Consideration
  4. Capacity
  5. Legality
53
Q

Freedom of contract

A

Rationale for state enforcement of private contracts – state should enforce contracts that people enter of their own free will.

54
Q

3 aspects of contracts

A
  1. Contract formation (creating the contract)
  2. Contract performance (executing the contract)
  3. Remedies for breach of contract (what happens if party doesn’t perform)
55
Q

4 categories of contracts

A
  1. Bilateral/Unilateral - promise for a promise/promise for an act
  2. Voidable/void - One of the parties was harmed by the way that the contract was made (example: induced to enter the contract by fraud). The harmed party (the one that was duped, but not the other one) can either go forward with the contract or cancel it. / The contract was never enforceable by any party from the start – usually because it was made for an illegal purpose.
  3. Express/implied-in-fact - Agreement terms have been stated directly by the parties either in oral or written words / Agreement is implied from the surrounding facts and circumstances.
  4. Executed/executory - Everyone has done what they said they would do in the contract. (All parties have performed all of their contractual duties.) / Something still needs to be done to finish performing the contract. We’ve agreed to do things, so we have a contract…but one or both of us has not done all of those things yet.
56
Q

Contract offer

A

Requirements:

  1. Present intent to contract (objective “reasonable person” test);
  2. Specificity/definiteness
  3. Communicated to offeree
  • Advertisements are not contracts unless there is a specific promise made to a specified person like rewards
57
Q

Contract acceptance

A

Requirements

  1. Present intent to contract (objective “reasonable person” test);
  2. offeree accepted the terms proposed by the offeror
  3. offeree communicated acceptance to the offeror
  • traditional rule - Mirror image rule, if not agreed one same terms then no contract is created
  • Modern rule - acceptance if there were not changes to the meat of the deal, like invoices or purchase orders
  • Silence is not acceptance except for - there’s a clause that says can agree by silence (by the end of the week), accepts work knowing the expectations like a hair cut
  • When acceptance occurs
  • Offeror may say how/when acceptance must occur
  • If not, reasonable time and reasonable place
58
Q

Contract consideration

A

Act OR promise to do something you had no prior obligation to do OR not do something you had the right to do

  • Rule: court won’t consider the adequacy of consideration, if you make a bad deal, still enforceable
  • Past consideration - a promise to do something the promiser has already done
  • Preexisting obligation - a promise to do something the promiser was already obligated to do (teach)
  • Illusory promises - a promise that doesn’t actually mind the promisor to do anything
  • Promises to make gift (gratuitous promise) - law doesn’t enforce this
  • Promissory Estoppel
59
Q

3 I’s of Contract capacity

A
  • Infancy - minor has the right to disaffirm and get out of the contract, usually must return the consideration but the adult doesn’t, but the exception is necessities like food, clothing, shelter etc
  • Insanity - does the person have sufficient mental capacity to understand the contract - no to depression, yes to dementia
  • Intoxication - looks at culpability, must be very extreme (car example)
  • Disaffirm - to get our of the contract
60
Q

Contract legality

A
  • Agreement to Restrain trade - anti-trust laws and fixing prices wouldn’t be enforced

3 ways a non-compete agreement is enforceable

  1. serve a legitimate business purpose
  2. reasonable in time, geographical area, and scope
  3. not impose an undue hardship
61
Q

6 realities of consent (defenses to contract suits)

A
  1. Misrepresentation
  2. Fraud
  3. Mistake
  4. Duress
  5. Undue Influence
  6. Unconscionability

If the Court finds any of these, the contract may be held voidable by the harmed party. Or, in some cases the court will reform the contract to match the expectations of the parties.

62
Q

Performance and remedies

A
  • Perform - doing what you promised to do
  • Interpretation of ambiguous terms; court will give term its usual meaning within the industry & against the party who drafted it, handwritten > typed > pre-printed
63
Q

4 types of offer termination

A

Termination of offer

  1. the terms of the offer say the offer would terminate
  2. a reasonable time expires
  3. the offeror revoked the offer - if the contract is already started can’t revoke, consideration can’t be a gift
  4. when the offeree rejects the offer either by rejecting or making a counteroffer
64
Q

Voidable Contract - 4 Misrepresentation Clauses

A

the contract is voidable but no punitive damages if

  1. one party made an innocent misrepresentation
  2. it was material
  3. the complaining party justifiably relied on the misrepresentation
  4. The complaining party suffered harm from that reliance.

like Fyre festival

65
Q

Voidable Contract - 4 Fraud Clauses

A

The contract is voidable, and harmed party may seek damages (including punitive damages) only if ALL 4 of the following are true

  1. One party made a misrepresentation – an untrue assertion of fact (or sometimes concealment of an important fact).
  2. The party making the representation intended to deceive the other party.
  3. The complaining party justifiably relied on the misrepresentation.
  4. The complaining party suffered harm from that reliance.
66
Q

Voidable Contract - 3 Mistake Clauses

A

Both parties share a misunderstanding.

  1. Mistake relates to a basic assumption on which the contract was made (mistake of fact; not of value).
  2. Mistake has a material effect on the agreed-upon exchange (parties would not have contracted had they been aware of the mistake); AND
  3. BOTH parties make the same mistake.

Unilateral Mistake – One party misunderstands a basic fact of the deal. Must be bilateral, like the jade bracelet.

67
Q

Voidable Contract - 2 Duress Clauses

A

Wrongful coercion that induces a person to enter or modify a contract.

  1. Contract was induced by an improper threat
  2. Victim had no reasonable alternative but to enter into the contract.
68
Q

Voidable Contract - 2 Undue Influence Clauses

A

Unfair persuasion affecting a person in a vulnerable position preyed upon by someone in a position of trust

  1. The relationship between the parties is one of trust or confidence or one in which the person exercising persuasion dominates the person being persuaded
  2. The persuasion is unfair.

Parent/Child
Lawyer/client
Trustee/beneficiary
Elderly person/caretaker

Great aunt example

69
Q

Voidable Contract - 2 Unconscionable Clauses

A
  1. absence of meaningful choice

2. terms so unreasonably advantageous to one party that they “shock the conscience” of the court.

70
Q

Contract Adhesion

A
  • goes with unconscionable contract voidability

Contract of Adhesion: Form contract presented on a take-it-or-leave-it basis (no negotiation possible – if you want the goods or services, you must accept the terms). Person who signs may not know or understand what he is signing

71
Q

Discharged from a contract

A

A party is “discharged” from the contract (free of further obligations) when she has either performed all obligations or been excused from further performance.

72
Q

Breach of contract & 2 types

A

A party who fails to do what he promised to do in the contract has “breached” the agreement.

  1. Material breach - Deprives the injured party of the benefits that he reasonably expected from the contract. A material breach goes to the essence of the deal. discharged, canceled, and can sue.
  2. non-material - Substantial performance; a more minor violation. can sue only for the damages specifically caused by the minor breach, and
    can only withhold performance until the breach is remedied. The non-breaching party cannot cancel the contract.

Material breach = pink walls
Substantial performance = paint specks

73
Q

Remedy & 2 types

A

When one party has breached, the other may ask the court to award a “remedy”

  1. such as requiring the breaching party to pay money (damages) or
  2. to perform the contract (specific performance) - rare
74
Q

Damages in contract case

A

Compensatory Damages
Non-breaching party gets the amount of money that would put the non-breaching party back in the position they would have been in if the deal had been performed –
Gives the “benefit of the bargain”.
Think: Don’t “rewind” the deal to undo it  instead “fast forward” to what the party would have had if everyone did what they promised to do in the contract.

75
Q

3 ways to be excused from a contract without having to pay damages

A
  1. condition for your performance is not met
  2. impossibility
  3. waiver/release

BLAW 302 (4 decks)

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