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BL 3305 > FINAL EXAM > Flashcards

FINAL EXAM Flashcards

1
Q

Substantive Law

A

Creates, defines, and regulates legal rights and duties [“the what”]

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2
Q

Procedural Law

A

States the rules for enforcing rights that exist because of substantive law [notice and right to be heard]

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3
Q

Civil Law

A

Defines rights and duties that individuals owe to one another

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4
Q

Criminal Law

A

Establishes duties and outlines offenses relating to the whole community

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5
Q

Burden of Proof for Civil Law

A

Plaintiff must prove a preponderance of evidence

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6
Q

Burden of Proof for Criminal Law

A

Plaintiff must prove guilt of the Defendant beyond a reasonable doubt

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7
Q

Judicial Review (C)

A

Verifies constitutionality

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8
Q

Common Law deals with:

A

Civil Disputes

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9
Q

Common Law must be ___________ and ___________

A

stable; predictable

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10
Q

Stare Decisis

A

the legal principle of determining points in litigation according to precedent, “to stand by the decisions”

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11
Q

What type of law is Common Law under?

A

Judicial

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12
Q

Equitable Remedies

A

Judicial relief that causes a party to either act or halt their current action

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13
Q

Restatement of Law (J)

A

Summaries of the common law

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14
Q

What areas are covered by restatements of law?

A

(CAPTT) Contracts, Agency, Property, Torts, Trusts

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15
Q

Who is legislative law passed by?

A

Statutes

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16
Q

Uniform Laws (L)

A

State statutes that have been passed to promote uniformity in some areas of the law

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17
Q

Administrative Law

A

Branch of public law, agencies are given power by Congress to govern policies within Govt Entities

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18
Q

Who creates Administrative Law?

A

Govt Agencies

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19
Q

What does Administrative Law protect?

A

Public Health, Safety, and Welfare

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20
Q

District Federal Courts

A

Trial level courts; every state has at least one

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21
Q

State Court System (low to high)

A
  1. Inferior Trial Courts
  2. State (District) Courts
  3. State Intermediate Court of Appeals
  4. State SC
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22
Q

Federal Court System (low to high)

A
  1. US District Courts
  2. US Intermediate Court of Appeals (Circuits)
  3. US SC
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23
Q

US Court of Appeals

A

12 Judicial Circuits, hear from district courts

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24
Q

What can the Court of Appeals do?

A

Reverse, Modify, Remand or Affirm lower courts

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25
Q

Court of Appeals decides questions of _______, not of _______

A

LAW, fact

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26
Q

Who can appeal in the Court of Appeals?

A

The losing party

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27
Q

US SC

A

Reviews Federal appellate (CoA) decisions and state supreme court decision

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28
Q

Specialty Courts Examples

A

Bankruptcy, Federal Crimes, Trademarks, Lawsuit vs US

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29
Q

Specialty Courts typically have

A

Exclusive federal jurisdiction

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30
Q

Inferior trial courts have no record of proceeding so if you lose,

A

You can ‘appeal’ by starting over in a district court

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31
Q

Another name for Trial Courts

A

County Court, District Court

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32
Q

Another name for Appellate Court

A

Court of Appeals

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33
Q

Supreme Court of State

A

Reviews decisions of other appellate courts,highest on chainlink of State Track

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34
Q

Inferior courts proceed over

A

Minor issues and small amounts of money

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35
Q

Jurisdiction

A

Authority to make a binding decision on parties involved

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36
Q

2 Pre-Reqs for BINDING Jurisdiction

A

Subject Matter AND Over the Parties

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37
Q

Concurrent Jurisdiction

A

State and Federal Systems have jurisdiction to hear the case

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38
Q

3 Types of Juristiction

A

Exclusive Federal, Concurrent, Exclusive State

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39
Q

When is there Concurrent Jurisdiction?

A
  1. Federal Questions
  2. Diversity of Citizenship and Amount over $75,000
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40
Q

In Personam Jurisdiction

A

Over person/entity

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41
Q

☆☆☆ PROCESS TO FIND JURISDICTION ☆☆☆

A

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”)

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42
Q

Substances Due Process

A

What you’re being charged with

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43
Q

Procedural Due Process

A

Notice and Opportunity to be heard

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44
Q

In Rem Jurisdiction

A

Over property ownership in the state

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45
Q

Quasi in Rem Jurisdiction

A

Attachment to the property

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46
Q

What does Plaintiff do to start a lawsuit?

A

File a petition or complaint

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47
Q

What does Defendant get to start a lawsuit?

A

Summons

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48
Q

Default Judgement

A

Defendant must respond in timely manner or Plaintiff automatically wins

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49
Q

Pretrial Procedure allows for a

A

Case to be decided if there is enough evidence to get a direct verdict

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50
Q

Purpose of Pre-Trial Discovery

A

Limit the amount of cases that make it to court

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51
Q

Voir Dire is an examination of:

A

Jurors to make sure they are not biased

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52
Q

2 Types of Alternate Dispute Resolutions:

A

Arbitration (binding), Mediation (non-binding)

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53
Q

Federalism (C)

A

Constitution gives enumerated powers to the Fed Govt

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54
Q

Federal Supremacy Clause (C)

A

Valid Federal Law > Conflicting State Law

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55
Q

Federal Preemption (C)

A

The Partial or Whole invalidation of a U.S. state law that conflicts with federal law

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56
Q

State Action

A

Non-Govt individuals infringing on constitutional rights

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57
Q

Commerce Clause

A

Fed Govt has broad and exclusive power to regulate commerce

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58
Q

Interstate

A

Between States

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59
Q

Intrastate

A

Within a State

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60
Q

The Commerce Clause can only _______ not __________ state regulations affecting interstate commerce

A

RESTRICT, stop

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61
Q

Govt can violate fundamental right if there is a ____________________

A

VALID REASON

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62
Q

Rational Relationship & example

A

Easy for Govt to violate (economic)

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63
Q

Strict Scrutiny & example

A

Hard for Govt to violate (fundamental rights)

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64
Q

Intermediate (limitations on govt) & example

A

Somewhat hard for Govt to violate (sex)

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65
Q

Procedural Due Process is protected by

A

5th and 14th Amendments

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66
Q

14th Amendment requires

A

All have equal protection under the law

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67
Q

3 Powers of Admin Agencies:

A

Rulemaking, Investigation/Enforcement, Adjudication of Controversies

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68
Q

Enabling statute must provide these opportunities before creating an admin agency:

A

Notice and right to be heard

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69
Q

What rules are enforced like a statute and must align with APA?

A

Legislative Rules

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70
Q

What type of trial does NOT get a jury?

A

HEARING PROCESS

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71
Q

Who holds a hearing trial and where?

A

Administrative Law Judge, not in court

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72
Q

In most cases, a crime must consist of ________ and ________

A

Actus Reus and Mens Rea (Intent)

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73
Q

What type of cause must be proven to get a warrent?

A

PROBABLE

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74
Q

3 Types of Subjective Crimes

A

(PKR) Purposefully (murder), Knowingly (murder, intent w victim), Recklessly (manslaughter)

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75
Q

3 Types of Crimes

A

(SOL) Subjective, Objective, Liability without Fault

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76
Q

Objective Mens Rea asks whether:

A

The reasonable person should have known of the risk

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77
Q

Typically, Liability without Fault results in:

A

Fines

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78
Q

Larceny

A

“trespassory taking” with intent to deprive

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79
Q

Embezzlement

A

Larceny by an individual in a position of trust

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80
Q

Robbery

A

Larceny w/ force (or threat of force)

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81
Q

Burglary

A

Breaking & entering, in a building, INTENT to commit felony

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82
Q

False Pretenses

A

Obtain property thru fraud, made with knowledge of falsity and intention to defraud

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83
Q

Forgery

A

Intentional Falsification of a document with intent to defraud

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84
Q

Extortion

A

Same as blackmail

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85
Q

Bribery

A

$ to a public official to influence decisions

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86
Q

Personal Crime Defense

A

Deadly force allowed

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87
Q

Property Crime Defense

A

Deadly force NOT allowed

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88
Q

Who brings about a criminal suit?

A

THE GOVT

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89
Q

Criminal suits GENERALLY do not:

A

Compensate the victim for harm done

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90
Q

Battery

A

Infliction of bodily contact

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91
Q

Assault

A

Infliction of fear for bodily harm, knowledge REQUIRED

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92
Q

False Imprisonment

A

Detained against will, no knowledge of escape, aware of confinement

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93
Q

Infliction of Emotional Distress

A

Intentional, no physical symptoms required

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94
Q

Libel

A

Defamation that isn’t oral

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95
Q

Slander

A

Oral Defamation

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96
Q

Defamation

A

False statement of another to at least 1 third party

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97
Q

Absolute Defense against defamation

A

Court

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98
Q

Constitutional Defense against defamation

A

Public Figure

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99
Q

4 Types of Invasion of Privacy

A

Appropriation, Intrusion (eavesdropping), Public Disclosure of Private Facts, False Light (knows of falsity)

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100
Q

Nuisance

A

Non-trespassory, interference w enjoyment of land

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101
Q

Conversion

A

Exercising unlawful control over personal property

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102
Q

Disparagement

A

False, offensive statements about product/property, told to at least one party

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103
Q

Fraudulent Misrepresentation

A

Known false statement of fact, other party “justifiably relies” on, intends to cause an action

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104
Q

Negligence

A

Failure to exercise reasonable care

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105
Q

Difference between intentional torts and negligence

A

INTENT is NOT required for Negligence

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106
Q

4 Required Elements of a Tort

A

Duty, Breach, Proximate Cause, Harm

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107
Q

2 parts to Proximate Cause

A

Factual Causation and Foreseeability

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108
Q

When is there a legal duty?

A

Creates Danger, Special Relationship, Statute Requires Action

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109
Q

Example of Licensee

A

Social Guests

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110
Q

Examples of Invitees

A

Store customer, repairs

111
Q

Duty of possessor for Licensee:

A

Warn of known danger that licensee is unlikely to discover

112
Q

Duty of possessor for Invitee:

A

Protect against danger that possessor does (or should) know about that invitee is unlikely to discover

113
Q

Contributory Negligence

A

If Plaintiff was negligent, no recovery

114
Q

Comparative Negligence

A

Plaintiff can recover if less at fault

115
Q

Assumption of the Risk

A

Plaintiff knew about risk so recovery is limited

116
Q

Strict Liability

A

Defendant liable for harm even if not at fault

117
Q

3 Categories that fall under Strict Liability:

A

Abnormally Dangerous Activities, Wild Animals, Defective Products

118
Q

When is acceptance typically effective?

A

UPON DISPATCH

119
Q

4 Elements of a K

A

(MCCL) Mutual Assent, Consideration, Capacity, Legality

120
Q

Bilateral

A

One promise in return for another promise

121
Q

Unilateral

A

One promise and one acceptance through action

122
Q

Voidable

A

K may exist, voidable by innocent party

123
Q

Void

A

No K is formed

124
Q

Promissory Estoppel

A

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
Q

Requirements for a Quasi K

A

Parties did not agree to contract, beneficiary wasn’t involved, accidental party accepts benefits

126
Q

Requirements for an Offer

A

(CID) Communicated, Intent, Definite

127
Q

Exceptions to revoking an offer before acceptance:

A

Option K, Firm Offer, Unilateral

128
Q

Other methods to end offer:

A

Death, Destruction, Illegality

129
Q

Rejection is effective when

A

RECIEVED

130
Q

Variant Acceptance

A

Acceptance that contains different terms than the offer

131
Q

Defective Acceptance

A

Acceptance that doesn’t align with time, method, or means

132
Q

Mirror Image Rule

A

CL, Offer and Acceptance must be identical

133
Q

Merchants typically use __________________ as an OFFER

A

Purchase Order Form

134
Q

Merchants typically use __________________ as an ACCEPTANCE

A

Confirmation Form

135
Q

VOID CONTRACTS

A
  1. Physical compulsion
  2. Fraud in execution
  3. Contracts in writing
136
Q

VOIDABLE CONTRACTS

A
  1. Improper threat
  2. Negligent misrepresentation
  3. Innocent misrepresentation
  4. Fraud in inducement
  5. Undue influence
  6. Mutual mistake
137
Q

Undue Influence

A

Taking unfair advantage of a person by reason of a dominant position based on a confidential relationship

138
Q

2 Basic Elements of Consideration

A

Legal Sufficiency, Bargained for Exchange

139
Q

When must consideration be agreed upon?

A

When K is formed

140
Q

Can unlicensed person recover under regulatory?

A

NO

141
Q

Can unlicensed person recover under revenue?

A

YES

142
Q

Covenant not to compete for BUSINESS

A

Look at time, geography, hardships (5 years)

143
Q

Covenant not to compete for EMPLOYMENT

A

Look for reasonable time and reason to protect the business

144
Q

Exculpatory Clause

A

Excuses a person in advance before they intentionally commit a tort

145
Q

Unconscionable Contracts are

A

Procedural and Substantive, are grossly unfair

146
Q

Can Courts remove an illegal part of a K and enforce it?

A

YES

147
Q

Exceptions for Minors

A

Cannot disaffirm sale of land, cannot ratify K until 18

148
Q

What incapacitated person makes a VOID K

A

Under guardianship

149
Q

What incapacitated person makes a VOIDABLE K

A

Mental Illness

150
Q

If K is “within” the SOF, it must be

A

IN WRITING

151
Q

Suretyship

A

Promise made to creditor to pay debt of another, “If he doesn’t pay, I will”

152
Q

MUST BE IN WRITING:

A

Real Estate, UCC >$500, 1yr< complete, Suretyship

153
Q

If possible to complete work within a year, Oral K is

A

ENFORCEABLE

154
Q

Whats included in document of Oral K under CL

A

(PSTS) Parties, Subject, Terms, Signature

155
Q

Whats included in document of Oral K under UCC

A

(IQIS) Intent, Quantity, Item, Signature

156
Q

Harder to have mutual assent for CL or UCC?

A

CL

157
Q

Parol Evidence Rule

A

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
Q

If consideration is paid when rights are assigned, it becomes

A

IRREVOCABLE

159
Q

What is the one requirement to assign rights?

A

INTENT

160
Q

Rights are _____________, duties are _____________

A

assigned, delegated

161
Q

Minority Rule for Assignment of Rights

A

First to give notice prevails

162
Q

Majority Rule for Assignment of Rights

A

First to have been assigned the rights prevails

163
Q

2 Types of Intended Beneficiaries

A

Donee, Creditor

164
Q

What Intended Beneficiary can enforce against the promisor ONLY

A

Donee

165
Q

What Intended Beneficiary can enforce against both parties in the K

A

Creditor

166
Q

Conditions

A

An uncertain event the happening or non-happening of it affects the duty of performance

167
Q

If the condition is NOT triggered, then

A

There is no breach of K

168
Q

Material Breach for CL means that

A

Party did not SUBSTANTIALLY perform, cannot ask for perfection

169
Q

Material Breach for UCC means that

A

There is a breach if it is not perfect (perfect tender rule)

170
Q

Anticipatory Repudiation

A

Back out of K prior to performance

171
Q

How is a contract treated with anticipatory repudiation?

A

Cover or Wait

172
Q

Commercial Impracticality

A

Performance can only be foreseen in unjust hardship

173
Q

What situation generally discharges promisor by law?

A

Objective Impossibility

174
Q

Monetary Damages are

A

Remedies at law

175
Q

Can a party be awarded punative damages for a breach of K?

A

NO

176
Q

Liquidated Damages

A

An amount of damages agreed to by the parties in the contract

177
Q

Specific Performance

A

PERFORM

178
Q

Injunction

A

STOP PERFORMANCE

179
Q

3 Requirements for Agency Relationship existence

A

Agreement, P has some control over actions, worker will act on behalf of P

180
Q

Equal Dignity Doctrine forces the agency agreement to

A

BE IN WRITING

181
Q

Who normally is bound to a contract in a when the agent had actual authority and/or apparent authority?

A

PRINCIPAL

182
Q

Fiduciary Duties

A

Loyalty, no competing, maintaining confidential info

183
Q

Duties of P to A

A

(CIGR) Compensation, Indemnification, Good Faith, Reimbursement

184
Q

Indemnification

A

“to make whole”

185
Q

Duties of A to P

A

(ODIA) Obedience, Diligence, Inform, Account

186
Q

2 Ways to Terminate Agency Relationship

A

Agreement or Operation of Law

187
Q

Suing: Disclosed P

A

Directly sue P

188
Q

Suing: Partially Disclosed P

A

Sue A then sue P, recover from one

189
Q

Suing: Undisclosed P

A

Sue A, A reimbursed from P

190
Q

Actual Authority, Disclosed

A

P – TP: bound

191
Q

Actual Authority, Partially Disclosed

A

P – TP: bound
A – TP: bound
P – A: reimbursement

192
Q

Actual Authority, Undisclosed

A

P – TP: bound
A – TP: bound
P – A: reimbursement

193
Q

Apparent Authority, Disclosed

A

P – TP: bound
P – A: indemnity

194
Q

Apparent Authority, Partially Disclosed

A

P – TP: bound
A – TP: bound
P – A: indemnity

195
Q

Apparent Authority, Undisclosed

A

NONE

196
Q

No Actual or Apparent Authority, Disclosed

A

A – TP: liable

197
Q

No Actual or Apparent Authority, Partially Disclosed

A

A – TP: bound

198
Q

No Actual or Apparent Authority, Undisclosed

A

A – TP: bound

199
Q

2 Requirements for Apparent Authority:

A

Principal and Agent known relationship, 3rd Party reasonably believes Agent has actual authority

200
Q

How apparent authority is cut off:

A

Death/Incapacity of Principal, Principal must notify in order to cut off

201
Q

P can be liable for tort of his A if it was P who:

A

Authorized, Negligence, or Strict Liability

202
Q

What is the proper format for a signature block?

A

XYZ Corporation

By: ___________________________
Name: Jason S. Smith
Title: President

203
Q

Signature blocks help A avoid:

A

Personal Liability in K

204
Q

When choosing a type of business, what factors should be considered?

A

(LETTCC) Liability, Ease of Formation, Taxation, Transferability, Control, Continuity

205
Q

Sole Proprietorship

A

One person owns, unlimited risk

206
Q

General Partnership/JV

A

Co-owned, for profit (split profits), Unlimited and Lose CC risk

207
Q

Limited Partnership

A

One general partner and one limited partner, General: Unlimited Risk, Limited: Limited Risk, BOTH Lose CC

208
Q

LLC

A

Members manage, Limited AND Lose CC risk, tax on personal only

209
Q

LLP

A

A limited partnership in which the liability of the general partners has been limited to some or all of the partnerships obligations

210
Q

Corporation

A

Managed by Board, Double Taxation for C Corp, Limited AND Lose CC risk

211
Q

Shareholder Agreements in Publicly Traded Companies

A

Typically don’t exist

212
Q

Shareholder Agreements in Privately Traded Companies

A

VERY IMPORTANT

213
Q

Entities are domestic to where they:

A

File their certificate of formation

214
Q

Promoters

A

Starts the business

215
Q

Incorporator

A

Signs the Articles of Incorporation

216
Q

Subscribers

A

Purchase Stock

217
Q

Names must be:

A

Unique, Not-confusing, have ‘inc’ or ‘corp’

218
Q

What is included in the TX certificates of formation?

A

Name, Agent, Address of Business

219
Q

If the incorporation is defective, courts may

A

Pierce the Corp Veil

220
Q

Piercing the Corp Veil is when:

A

Owners are held personally liable for the debts of the entity

221
Q

PtCV comes from

A

Common Law

222
Q

Secured Claim vs Unsecured Claim

A

Creditor can recollect collateral under secured claims

223
Q

Automatic Stay

A

Creditors cannot try and collect debts from Debtors who have declared bankruptcy

224
Q

First step to file for bankruptcy

A

Voluntary Petition is Filed by Debtor

225
Q

If the creditor wants to be paid, they must file

A

Proof of Claim

226
Q

Order of distributing money to claims

A

Secured, Priority, Unsecured, Debtor

227
Q

Ch 7 Bankruptcy

A

Individual liquidation, trustee

228
Q

Ch 11 Bankruptcy

A

Business reorganization, future business earnings pay off debt

229
Q

Ch 13 Bankruptcy

A

Individual reorganization, trustee, future wages pay off some of the debt

230
Q

What is a confirmation hearing?

A

A hearing to ensure that the bankruptcy plan is feasible

231
Q

What is NOT protected under CRA1964

A

Age, Disability

232
Q

2 Types of Sexual Harassment

A

Quid Pro Quo, Hostile Work Environment

233
Q

ADEA of 1967 prohibits discrimination

A

In age (over 40)

234
Q

ADA 1990 prohibits discrimination

A

For those with disabilities/handicaps

235
Q

What amendment is OSHA stemming from?

A

4th

236
Q

FLSA outlines laws relating to

A

Overtime, Minimum Wages, Child Labor (no one under 14)

237
Q

WARN Act requires that

A

Employers with > 100 “full time” employees AND firing >50 employees at one location

238
Q

Best way to solve international disputes?

A

Arbitration > Litigation

239
Q

Business risk of Expropriation

A

Property taken without compensation

240
Q

Business risk of Confiscation

A

Property taken and given compensation

241
Q

4 Most important elements to be included in foreign contracts

A

Dispute Resolution, Choice of Law Provision, Language, Payment

242
Q

Fixtures

A

Removal would damage realty, purpose to structure, peculiar to the realty

243
Q

Ways to Transfer Personal Property

A

(GSAW) Gift, Sale, Accession, Will

244
Q

Requirements for transfer to qualify as a gift:

A

Delivery, Intent to Gift, Acceptance

245
Q

Accession Example

A

Cows, Interest

246
Q

If mislaid, who has title?

A

Possessor of space where item as left

247
Q

If found underground, who has title?

A

Landowner

248
Q

Fee Simple

A

No associated future interest

249
Q

Fee Simple Defeasible

A

Always associated future interest

250
Q

Anyone with future interest gets what after life estate owner’s death?

A

Fee Simple

251
Q

Life Estate

A

Gives the property to the person “for life” and identifies what should happen to it after that person dies

252
Q

Leasehold Estate

A

Contract for possession/use

253
Q

If interest in Joint Tenancy is transferred to someone not in JT, JT turns into

A

Tenancy in Common

254
Q

Tenancy in common has NO

A

right of survivorship

255
Q

Easement

A

Interest that provides the easement holder permission to use another person’s land

256
Q

Requirements for a valid deed:

A

In writing, delivery (or proof to), grantor signs, legal description of land

257
Q

A deed is a

A

CONTRACT

258
Q

General Warranty means Grantor has agreed to

A

Defend title all the way back to patent

259
Q

Special Warranty means Grantor has agreed to

A

Defend title to the property for encumbrances/transfers they made themselves

260
Q

Quitclaim Deed means Grantor has agreed to

A

Simply transfer the title if they have it, they do not defend the title, they are not liable

261
Q

Recordation

A

Providing a county authority with the original document of the deed

262
Q

4 Requirements for a Will

A
  1. Written
  2. Signed
  3. Witnesses
  4. Capacity
263
Q

Testator

A

Person who dies

264
Q

Executor

A

Opens the probate

265
Q

2 Ways for a Will to be Revoked

A

By Testator, By Operation of Law (marriage, child, destruction)

266
Q

Interstate Succession

A

There is no Will so property is distributed based on state law

267
Q

Per Capita is split:

A

Evenly between all groups

268
Q

Escheat

A

If there are no heirs to the property, the government can obtain it

269
Q

Probate

A

The proving of a will

270
Q

What usually is administered by the estate after death?

A

Joint Tenancy Assets and Life Insurance

271
Q

Nuncupative Will

A

“Death bed”, oral, ONLY personal property

272
Q

Holographic Will

A

Entirely in Testator’s handwriting, no witnesses

273
Q

Are Living Wills or Powers of Attorney wills?

A

NO

274
Q

Living Wills/Power of Attorney gives:

A

Direction on medical decisions and what a party would want

BL 3305 (8 decks)

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