Law Flashcards
Sources of Law
US Constitution Common Law •Statutory Law •Administrative Law •Uniform Law •Uniform Laws •Ballot Initiatives •Executive Orders
Jurisdiction for People
- People have jurisdiction over you if you’re there
* If you’re tricked into going there, they don’t have jurisdiction over you
Jurisdiction for Corporations
Corporations can always be sued..
o in the state of incorporation
oWhere your headquarters is
oSued wherever you are doing business
Voir Dire
process of going through potential jurors
Burden of Proof (Civil Case)
oBurden of Proof (Civil Case) by a preponderance of evidence
•More likely than not that what happened happened
•Jury trial does not have to be unanimous (2/3 or ¾ to think it’s more likely than not that the defendant is guilty)
Stare Decisis
- Based on common law tradition, past court decisions become precedent for deciding future cases
- Lower courts must follow the precedent established by higher courts
- Courts of one jurisdiction are not bound by the precedent established by the courts of another jurisdiction, although they may look to each other for guidance
IRAC Analysis
I – What is the legal issue in the case?
R – What is the rule (law) of the case?
A – What is the court’s analysis and rationale?
C – What was the conclusion or outcome of the case?
Three Parts of a Contract
1) Mutual Acceptance
2) Consideration
3) No Contract Defenses
Mutual Acceptance
Offer a Serious contract; Courts will ask “was it a legit offer?”
Not valid until the offeree knows about it
Mailbox Rule
When the acceptance is SENT it is effective
Consideration in a Contract
each side has to give something to the other OR give up a legal right (a gift is not a contract)
No Contract Defenses
- contracts breaking the law
- voidable contracts
- victims of fraud
- things that must be in writing
Voidable Contracts
- you’re not 18
- violates a statute (Usury statutes limit amount of interest in a loan) (non-competes)
Contracts that must be in writing
a.For goods over $500
bAnything to do with land/real estate
c.If you promise to pay off someone else’s debts
d.If there is a security interest on a property (the part of a loan that says they can repossess your car/house)
Remedies
what you get in a civil trial (monetary damagess, equitable remedies)
Monetary Damages
Compensatory, Consequential, Punitive, Liquidiated, Nominal
Equitable Remedies
Things other than money; injunctions, specific performance, reformation of contract)
Tort
any civil wrong, excluding breech of contract and crimes
Direct Liability
whoever the “bad guy” is
Vicarious LIability
Normally, the organization who employed that person. Must prove agency relationship and action within the scope of the agency
Negligent Hiring
Less likely; only applies if the tort was within the role of the job
Intentional Torts (Intent)
Specific, Transferred, General Intent
Battery
harmful / offensive touching of a person without permission. Can be direct or indirect.
Assault
Threatening someone
False Imprisonment
forcing someone to stay against their will
Defamation
either written (libel) or spoken (slander) communication that lies about a person
Trade Disparagement
;defaming of product or company
Fraud
(1) misrepresentation (a lie)
(2) of a fact (not an opinion)
(3) that is material (a real important fact)
(4) made with scienter (intent to fraud – doing it on purpose to get a deal)
(5) justifiable reliance (would a reasonable person have been fooled?)
Can sue for breach of contract in one paragraph or for intentional torte of fraud
Interference
A and B have a contract and C either (1) tries to encourage breaking of contract or (2) tries to make it harder for them to keep the contract
Stealing Trade Secrets
can’t take those out of the company – higher up in the company the offender is, usually the harsher the punishment (patents, recipes, designs, etc
Negligence
1) Duty (Is it part of the job?)
2) Breach (reasonable person test)
3) Proximate Cause (“But For” clause, Forseeability)
4) Damage
Contributory Negligence
defense to negligence;what if plaintiff is also at fault / partly negligent? Then you have no case
Comparative Negligence
defense to negligence; you have some blame on both sides, so jury has to assign certain percentage of blame for each side so that the percentage the plaintiff is at fault can be deducted from the award
Assumption of Risk
when you have been put on notice about the risks and you decide to do that activity anyway
Strict Liability
smallest area in terms of numbers and cases
o Only comes into play in certain circumstances and places
(Using explosives, owners of wild animals)
Product Liability
1) Intent
2) Negligence
3) Strict Liability (wherever teh product leaves from damaged)
4) Breach of Warranty
5) Breach of Implied Warranty
6) Statutory Violation
Equal Employment Opportunity Commission
EEOC enforces most federal antidiscrimination laws
Can investigate charges of discrimination based on race, color, national origin, gend,r religion, age, disability, and genetic information
Complaint Process for EEOC
file a complaint with the EEOC
EEOC would prefer you fix through mediation
IF that doesn’t fix it, EEOC will investigate and decide whether to sue; if they don’t find a violation they can give the employee a right to sue letter
•Fair Employment Practices Agency (FFEPA) – a state org that does a similar thing
Lilly Ledbetter Fair pay Act of 2009
- Pay discrimination – must file within 180 days of a discriminatory paycheck
- Can get up to two years backpay
Title VII of Civil Rights Act
oMust have 15 people, be part of a gov, etc.
oDisparate-Treatment Discrimination
oDisparate-Impact Discrimination
Disparate-Treatment Discrimination
gainst an individual. must prove you belong to a protected class, you applied for the position, you were rejected, the employer kept the position open and kept looking for people with your qualifications
Disparate-Impact Discrimination
against an entire protected class
Remedies for Discrimination
recover backpay, punitive damages, reasonable attorney’s fees
Protected Groups
oRace oColor oSex oReligion – weak link because you can choose your religion oNational Origin oAge oHandicap oPregnancy oMilitary Service oSexual Preference: not covered by federal statute, in various states and cities though
Bona Fide Occupational Qualification
Must be job related and business necessity to discriminate
Age Discrimination
oOnly protects people 40 and over
oAdministered by EEOC
oAge Discrimination in Employment Act (ADE
Physically Challenged Person Discrimination
oAmericans with Disabilities Act (ADA) oQualified person with disability oPhysiological impairment oMental or psychological disorders oMust make reasonable accommodations, cannot present undue hardships
Worker’s Compensation
oCan require insurance
oMust prove you were harmed by an employment-related injury
oExclusive remedy – you can’t get worker’s comp and sue (pick one)
Occupational Safety and Health Act (OSHA)
•Keeps workers safe
•Mostly specific duty standards that apply to specific equipment, procedures, etc.
OSHA can also inspect
Fair Labor Standards Act (FLSA)
Applies to private employers and employees engaged in the production of goods for interstate commerce (US Dept of Labor enforces)
Child Labor
o Under 14 you can only deliver newspapers
o 14-15 in nonhazardous jobs
o 16-17 unlimited hours in nonhazard jobs
o agricultural employment and child actors/performers exempt
Minimum Wage
o Employee who earns tips can earn 2.13 as long as tips make up the difference
o Each week treated separately for overtime pay requirements
Overtime Compensation
after working 40 hours per week for the same employer, they have to pay you at least time and a half (Paralegals qualify, • Chefs, funeral home directors, musicians, do not get this compensation due to new guidelines). • No requirement for paid sick days, holidays or vacations. Have to pay for time it takes to put on a required clothes and firedrills
Unemployment Compensation
→ This is for periods of temporary unemployment
oMatter of right, not a matter of need
oTo quality, you have to (1) leave / quit your job involuntarily / laid off, (2) be willing to work, and (3) be physically able to work full time
oFunded by tax on employers
•Tax rate based on lay-off rate of individual company
Social Security
You pay half, your employer pays half; includes disability and Medicaire
Drug-Free Workplace
→Federal and State laws regarding potential employees
oGenerally screen pre-hiring
oIf employer has reasonable suspicion to believe someone is under the influence at work, can legally drug-screen
•If accident at work, drug screening is often required
oIf employer has government contracts, expect to be tested
oEmployers need to watch out for discrimination, must be truly random drug tests on every employee
Employment Polygraph
→ Not admissible in court → Issue is when can employer use it: oNational security oPrivate security firm protecting public health / safety oAccess to drugs oEmployers investigating inside theft
FMLA
- (1) have to work 1000 hours for 12 months
* (2) kicks in with company’s 51sts employee
Agency
consists of two players (1) principal and (2) agent
Are you an independent contractor?
•How much control the principal has over the work
•Does the employee work just for this company or for others as well
•Who does the supervisor work for
•Who owns the tools (if the person needs tools for the job)
•What degree of skill is required by the worker
NOT NECESSARILY BASED ON CONTRACT
Advantages of Agency Relationship over Independent Contractor
oDeals with liability somewhat
oYou have principal and agent – with agent you have contracts and torts to deal with since he acts for principal
Frolic and Detour (respondciant insindior)
o Deals with liability
• (1) agency and (2) within scope of agency
(If you take time off and something happens, who is responsible?
Duties Agent Owes Principal
o Start by dealing with the specifics then go to the general: Was there an employment contract? If employee is in a union, there could be a collective bargaining agreement on its own or in addition to an individual contract. • (1) Employee contract • (2) Job description • (3) Employee handbook • (4) Industry customs • (5) Duties imposed by law
Fiduciary duties
special relationship with trust – relationships between agent and principal is fiduciary. Look out for employer, not interests of self
Duties Principle Owes Agent
oStart with specifics…
(1) Employee contract
(2) Job description
(3) Employee handbook
(4) Industry customs
(5) Duties imposed by law
Franchises
oIf you have franchisor and franchisee, then you have a franchise agreement
•Franchisor tells you how much insurance to get, where you get your food, where you can be located, etc because it makes for uniformity, which is how franchises make their money. The franchisor has the control, like the principal, and the franchisee is like the agent
What business entity is right?
o Liability of owners – most important o Taxation o Control o Continuity o Raising Capital o Organizational Cost
Patent
grant you a monopoly, saying you are the only one who can use the item secured by the patent for 20 years (from the time the item is made
To get a patent…
o (1) new
o (2) useful
o (3) nonobvious
Patent Infringement
(making, using or selling someone’s patent idea without having the rights to do that). If someone is infringing upon your patent, you can ask for 2 things:(1) Immediate Injunction: you want them to stop
(2) Damages:
Trade Secrets
confidential information that would give your company a competitive advantage, anything your competitor would be willing to pay money to get. CAN BE REVERSE ENGINEERED
Espionage
disgruntled worker might want to get back at company or a person could be from another company / country trying to get hired for the sole purpose of finding out trade secrets
Trade Marks
word, phrase, logo, etc.
Life of a Trademark
(1) Selection:
(2) Protection
(3) Maintenance
(4) Enforcement
Categories under trademark law
Trademark, Service Mark, Trade Dress, Specific Sounds, Strong Marks, Arbitrary marks, Suggestive Marks
Copyright
an exclusive right given by federal statute to a creator of an artistic or literary work to reproduce, distribute, make derivative works to display, to digital transmissions, and to transfer rights by license or agreement
What can copyrights protect
books, music, choreographic works, movies, maps, paintings, sculptures, photographs, computer software, jewelry, greeting cards
Copyright Length of Protection
oWork held by individual is life or author plus 70 years
More than one then life of last author to die plus 70 years
Fair Use
Says in certain circumstances you can take a little bit of a copyright work and use it and not violate the copyright law
