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