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Terms in this set (215)
The American legal system is largely inherited from the English __________ _______ system.
Cases make ______________ that are intended to be followed in similar future disputes.
Under the ____________ _____________ of the Constitution (sec. VI, cl. 2), the federal legal system is the _____________ ___________ of the land, yet the federal government allows individual states to retain an extraordinary amount of legal power.
Supremacy Clause; supreme law
Most crimes are punished at the _________ ________, and most tort, contract, and business disputes are handled in _________ courts and governed by_______ law.
state level; state; state
____________ __________ generally only decide cases involving ___________ law or cases between citizens of different states.
Federal courts; federal
Federal Court System
Supreme Court; U.S. Courts of Appeals
How many District courts does Texas have? Where are they?
4; Tyler, Houston, San Antonio, Dallas
What are the special Federal Courts?
Tax Court, Court of Federal Claims, Court of International Trade, Bankruptcy Court, Court of Appeals for Armed Services, Court of Appeals for Veterans Claims
In the federal court system, judges have ___________ appointments by the President, with the "advice and consent" of the _________.
__________ courts of __________ jurisdiction have the following process Impanel __________, Receive _________, Hear _________, Decide _________
Trial; General; Juries; Evidence; Testimony; Cases
For federal judges, leaving office requires _________, ____________, __________, or ____________. Only ____ federal judges have been impeached over the last 200+ years.
death, retirement, resignation, or impeachment; 15
U.S. Court of Appeals hears appeals from the __________ courts located in their circuit. There are _____ circuits.
The U.S. Supreme court hears appels from:
Federal Circuit Courts of Appeals, Federal District Courts, under certain circumstances, Special federal courts, Highest state courts
The U.S. supreme takes in no new _______ or _________.
There are ____ Supreme Court Justices
U.S. Supreme Court accepts about ____ cases per year.
What are the areas of jurisdiction of federal courts?
U.S. Constitution, Treaties, Federal statutes and regulations
State-law claims involving citizens of different states involving ___________ in controversey.
The Constitution is basically silent on an ____________ ___________ of government.
Beyond the power of the President, ________ _________ gives Congress the power "to regulate Commerce with foreign Nations, among the several States, and with the Indian Tribes." Known as the _________ _________
Art. 1; sec 8; commerce clause
_________ _________ created by legislative and executive branches of federal, state, and local governments to assist in ____________ and ___________ law. Operation is goverened by _______________ law.
Administrative Agencies; Implementing, enforcing; administrative
General Government agencies that regulate business and industry include:
NLRB, OSHA, CPSC
Specific Government agencies that regulate business and industry include:
The Fed, FCC, FRA, FAA, FDA
Administrative law is a combination of __________ and _________ law.
Lawyers have 3 key roles:
Representative, Officer of the legal system, Responsibility for justice
What state allows you to become a lawyer without passing a test.
A lawsuit usually begins with one party filing a ____________ with the court; called a "__________" in Texas state court.
The expiration of a lawsuit is: __ years for ________, __ years for _________, etc.
2, torts; 4, contracts
The plaintiff must ________ the defendant with ________ by issuing a summons and citation, which is the formal document summoning the defendant into court and requiring it to file an __________.
serve; process; answer
The documents filed with the court are called ___________, and are public records.
Discovery devices and techniques:
Production of documents
Inspection of property or examination of injured person
Subpoenas from non-parties
Depositions have at least two purposes:
1) help determine facts upon which the other side is relying, and 2) create a factual record to be used at trial in the event the witness tries to contradict his or her former statements.
RFPs _______ ___ ________ are a discovery tool whereby one party requires its opponent to produce documents—sometimes numbering millions of pages—relevant to the case.
Requests for Production
_______________ are carefully designed written questions that parties ask one another prior to trial, in order to determine the basis for the opposition's case.
A ___________ _____ __________ __________ is a request that the judge automatically declare them the winner without benefit of a jury trial.
Motion for Summary Judgement
The vast majority of lawsuits are settled prior to trial—something _____________________
Alternative Dispute Resolution Methods:
Mediation (most common)
Informal settlement conference
Trials last anywhere from __ day to ____ - ____ months.
The trial process includes:
Witness presentation (often taking days or weeks)
Verdict and judgment
The record is composed of all the ______________ filed in the trial court, plus all the ___________ __________ and transcripts of testimony of all witnesses at trial.
pleadings, written evidence
The appellate court reviews the briefs and record, and usually will grant the parties __________ ____________, which is an opportunity for each side to make about a 25-30 minute argument in the court of appeals describing why they should win, and allowing the panel of judges to ask questions of clarification and explanation.
_______ __________ or ________ ____________ are monetary damages that compensate the injured party. __________ __________ could include lost wages, medical bills, damages for emotional distress, etc.
Tort damages, actual damages, actual damages
_________ __________ or __________ ____________ are a punishment or an example of the defendant, and thereby serve to deter future wrongs.
Punitive damages, exemplary damages
What are the 3 categories of torts?
Intentional, Unintentional, Strict Liability Torts
The Intentional Tort of __________ is defined as any action that arouses reasonable apprehension of __________ harm.
The Intenational Tort of _______________ ____ _____________ ___________ is when party A intends to harm party B but actually injures party C
Doctrine of transferred Intent
The Intentional Tort of _____________ ___ ___________ is when the defendant makes an untrue statement of fact about plaintiff. Slander is _______ defamation. Libel is false statement that appears ___ __________.
Defamation of Character; Oral; In writing.
____________ is the wrongful taking of the property of another.
Establishment with liquor license: if alcohol is sold or given to an intoxicated person and that person harms some third party, the ______________ is liable. The __________ of the alachol is always liable.
A person is liable for harm that is the ______________ _______________ of his or her actions. Known as _____________ ___________.
foreseeable consequence; Unintentional Tort
Elements of an Unintentional Tort:
The defendant owed a duty of care to the plaintiff.
The defendant breached the duty of care.
The plaintiff suffered injury.
The defendant's negligent act caused the plaintiff's injury.
Defendants with a particular expertise or competence are measured against a ___________ ___________ _____________.
reasonable professional standard
A failure to exercise care or to act as a reasonable person would act is a _______ ____ ________.
Breach of Duty
Unintentional Torts must include _________ ___ ________.
Injury to Plaintiff
Causation in Negligent tort claims includes _________ ____ ________ (actual cause) and _________ __________ (legal cause).
Causation in Fact, Proximate Cause
Defenses Against Negligence:
Superseding or Intervening Event
Assumption of Risk
Superseding or Intervening Event - An event for which ____________ is not responsible.
Assumption of Risk - Plaintiff who __________ participates in risky activity assumes the normal risks of that activity.
Contributory Negligence - Plaintiff who is ___________ at fault for his or her own injuries cannot recover.
____________ __________ __________ ____________ - a negligent plaintiff can nonetheless recover if he is able to show that the defendant had the last opportunity to avoid the accident.
Last clear chance doctorine
A participant in a covered activity will be held liable for any injuries caused by the activity, whether or not he or she was negligent is __________ __________ _________.
Liability without fault
A ___________ is an agreement that is enforceable by a court of law or equity.
Terms of the contract become ___________ law between the parties.
Elements of a contract:
Agreement _________ by offeror and _____________ by offeree
Consideration the promise must be supported by ____________-____ __________ that is legally sufficient.
Contractual Capacity parties must have _________ to enter into a contact.
Lawful Object the object of the contract must be ___________.
Defenses to Enforcement of a Contract:
Genuineness of Assent
Writing and Form
Genuineness of Assent
Common Law - ___________ _______ developed primarily by _________ courts.
contract law; state
Uniform Commercial Code (UCC) - Comprehensive statutory scheme that includes laws that cover aspects of ______________ _____________.
The offeror must _____________ ___________ to be bound by the offer.
The terms of the offer must be __________ or ____________ certain.
The offer must be _______________ to the offeree.
Objective theory of contracts states the intent to contract is judged by the _____________ __________ ___________ and not by the subjective intent of the parties.
reasonable person standard
No valid contract results from ___________ negotiations; offers that are made in ______, ________ or _________ _________
Preliminary; jest, anger, undue excitement
Consideration - something of _______ _______ given in exchange for a promise.
___________ is a necessary element for the existence of a contract. Contracts unsupported by consideration are generally ______ ____________.
Consideration; not enforceable
Consideration consists of two elements:
A contract is considered supported by legal value if the promisee suffers a ____________ __________; or
the promisor receives a __________ ___________. Most often invloves ________ or ________.
Money or property.
Bargained-for Exchanged - Process of bargaining or inducement that leads to an ______________ ____________.
Gratuitous promises _______________ due to lack of consideration.
Contracts Lacking Consideration
Promises made out of a sense of __________ _________ or honor lack consideration.
______________ _________ a promise to do something the party is already under an obligation to do.
Problems of ____________ ______________ often arise when a party to a contract promises to pay additional compensation for work done in the past.
Promisor made a promise.
Promisor should have reasonably expected that promisee would rely on the promise.
Promisee did rely on promise.
Injustice would result if promise not enforced.
Law presumes that parties have contractual __________ to enter into the contract. Examples?
capacity; minors, insane persons, intoxicated persons (completely impared)
Common law says females are considered minors at age ________ males at age ______. Many states enacted statutes that specify ______ ____ ________.
18, 21; age of majority
_________ ___________ - a state of contractual incapacity as determined by law.
A person who has been ___________ _________ by a proper court or administrative agency. Such contracts are _________.
adjudged insane; void
A person who is insane but has not been adjudged insane by a ________ or ___________ ______________. Such contracts are __________. ____________ party canno't void the contract.
court, administrative agency; voidable; Competent
A person who is so intoxicated that he or she cannot understand ________ of transaction may disaffim. Contract is _________ by intoxicated party and _____ ________ by the other party if they had contractual capacity.
nature; void, non voidable
Contracts contrary to __________ ___________. COntracts that have anegative impact on society or that interfere with the public's safety and welfare. Such contracts are _________.
Public Policy; Void
Covenants Not to Compete - Lawful if ancillary to _______ of a __________ or ____________ contract.
sale, business, employment
Covenants Not to Compete - if reasonable in three aspects
The line of business protected.
Duration of the restriction.
Covenants Not to Compete - Texas also imposes two additional requirements: Reasonableness of the __________ _____ ____________ restricted and sufficient ___________ in return for the promise not to compete (i.e. special training or trade secrets)
scope of activity, consideration
When a party is fraudulently induced to enter into a contract: Contract is ____________ by the innocent party
Can ___________ contract and obtain restitution, or ____________ contract and ______ for damages.
voidable; rescind; enforce, sue
5 Types of Fraud
Silence as Misrepresentation
Misrpresentation of Law
___________ _______________ - Person makes statement of fact that he or she honestly and reasonably believes to be true, even though it is not.
_________ _____ ________ - State statute that requires certain types of contracts to be in writing.
Statue of Frauds
Any contract that transfers an ___________ interest in _________ _________ must be in writing under the
Statute of Frauds to be enforceable.
ownership; real property
Things permanently affixed to the land.
Other contracts that transfer an ownership interest in land must be in writing under the Statute of Frauds.
Part Performance Exception - Court may order an oral contract to be specifically performed if it has been ____________ performed and performance is necessary to avoid injustice.
One Year Rule Executory contract that cannot by its own terms be performed within ______ ________ of its formation must be in writing.
Contract may be oral if performance of contract is possible within the one-year period. Example?
Collateral Promises - One person agrees to answer for the ________ or duties of another person.
Guaranty Contract - contract between the ______________ and the ____________ __________. Must be in writing unless main purpose is to provide _____________ __________ to guarantor.
guarantor; original creditor; pecuniary benefit
Contracts for the sale of goods priced at _________ or more must be in __________ to be enforceable.
Sole Proprietorship _______ _______ form of business organization in the United States
Advantages to a Sole Proprietorship:
Ease of formation
Complete control over management decisions
Proprietor owns entire business
Receive all profits
Easily transfered or sold
Disadvantages to a Sole Proprietorship:
Access to capital is limited
Proprietor legally responsible for business's contracts
Proprietor responsible for torts committed in course of employment.
The proprietor of a Sole Proprietorship has _____________ ____________ __________.
unlimited personal liability.
A sole proprietorship does not pay tax at the ____________ ____________. Instead taxes are reported on the proprietor's __________ ___________ _______ return.
Does not pay taxes at business level; personal income tax
General Partnership - Rights and duties between partners and with third parties defined by ____________ ____________ and by law.
General Partnership - Partners _____________ ________ for debts and obligations of the partnership.
Uniform Partnership Act; revised uniform partnership act; revised partnership act
RPA. What it is? What does it do?
Codifies partnership law; Covers most problems that arise in the formation, operation, and dissolution of ordinary partnerships.
General Partnerships - Can operate under name of any one or all of ___________, or May use ____________ name.
Duty of Loyalty - In case of conflict between partnership interests and personal interests, ___________ must choose the interest of the ______________.
Breaches of Duty of Loyalty:
Usurping partnership opportunity
Competing with partnership
Breach of confidentiality
personal use of partnership property
Duty of care - Partners must use level of care and skill that a ___________ _________ would use in the same circumstances.
Partner is liable to the partnership for any damages caused by his or her______________.
Duty to Inform: Knowledge is __________ to other partners.
Duty of Obedience - Partners must _________ to provisions of partnership agreement and decisions of the partnership.
Right to an Accounting - Partners cannot _______ partnership.
An action for an accounting is a formal judicial proceeding where the court is authorized to ________ the partnership and the partners' transactions, and _________ each partner his or her share of the partnership __________.
review; award; assets
________________ is liable for tortious act of a partner, employee, or agent committed while the person is acting within the ___________ _________ of partnership business or with the authority of his or her co-partners.
Partnership; ordinary course
Partners _____________ and ___________ liable for torts and breaches of trust.
Joint and Several Liability - Plaintiff can sue one or more of the __________ ___________ and recover the entire amount of judgment from any or all of the defendant-partners.
Contract Liability - Partners are _________ ___________ for contracts and debts of partnership.
*There are four types of liability that no business form can completely eliminate:
Liability for personal torts
Liability for individual capital contribution
Liability for personal guaranty obligations, where applicable
Personal tax liability
________________ - A fictitious legal entity that is created according to statutory requirements.
Shareholders are only liable to the extent of their ____________ ________ for the contracts and debts of the corporation.
Transferability: Corporate shares are ___________ ________________ by the shareholder.
Perpetual Existence: Corporations exist in ___________. Can be voluntarily terminated by the __________________.
Centralized Management: __________ ___ ____________ makes policy decisions concerning the operation of the corporation.
Board of directors
There is no ___________ federal corporations law. Many specific federal laws regulate the operation of private corporations.
Profit Corporation: Can distribute________ to ______________ in the form of __________.
profits, shareholders, dividends
Does a non-profit have shareholders?
Non-Profit Corporation: A corporation formed to operate _____________ institutions, colleges, universities, and other not-for-profit entities.
A corporation can be incorporated in only ________ state. May choose state where laws are most ______________ to operations. E.g., ___________ and ____________.
one; favorable; Delaware, Nevada
___________-____________ _____________ often included in the ___________ _____ _________, authorizing the corporation to engage in any activity permitted corporations by law.
General-purpose clause; articles of incorporation
Alternative is __________-_________ _________. E.g., "to engage in the purpose of real estate development."
______________ __________- A detailed set of rules adopted by the board of directors after the corporation is incorporated. Board of directors may__________.
Corporate Bylaws; amend
SCCs - Corporations with ____ or fewer shareholders may choose this status. SCC may dispense with some ____________ of operating a corporation.
C Corporations are __________ legal entities. Generally pay _________ taxes.
If a corporation distributes its profits to shareholders in the form of dividends, shareholders must pay _________ _________ tax on the dividends.
S Corporations can avoid __________ taxation by not paying _________ __________ tax at the corporate level.
double; federal income
S Corporation's income or loss flows to the shareholders'_____________ income tax returns.
Eligibility to be S Corp:
Not a member of affiliated group of corporations
< 100 shareholders
No partnerships or corps as shareholders
Olny U.S. citizens or residents as shareholders
Only one class of stock.
Common Stock - represents the ___________ value of the corporation. Has no _________. Shareholders have right to _________.
residual; preferences; vote
Preferred Stock - has ____________ and rights over common stock. No right to _________. Lots of prefrences.
No state taxes on corporate income, franchises, personal income.
Assets hard for creditors to reach.
Special business court.
Act by a corporation that is beyond its ____________ or ____________ powers. Can lead to injunction, lawsuit and potentially _______________ of the corporation.
expres, implied; disillusion
__________ ____________ - If a shareholder dominates corporation and uses it for improper purposes, court can disregard corporate entity, and hold the shareholder personally liable for the corporation's debts and obligations.
Texas, the veil-piercing standard applies when
The corporate "fiction" is used as a means of perpetrating a fraud
The corporation is organized and operated as a mere tool or business conduit of another
The corporate fiction is resorted to as a means of evading an existing legal obligation
The corporate fiction is used to achieve or perpetuate a monopoly
The corporate fiction is used to circumvent a statute
The corporate fiction is used to commit a crime or justify wrong
Duty of care is discharged if officer or director:
1. In good faith.
2. With the care that an ordinary prudent person in a like position would use under similar circumstances.
3. In a manner he or she reasonably believes to be in the best interests of the corporation.
Business Judgment Rule:___________ not applied.
Protection in Constitution: Congress hall have the power.... to promote Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive________ to their respective Writings and Discoveries."
___________ Patent Statue
Patents for inventions are valid for____ years. Design patents are valid for _____ years. Follows the ________ to ______ rule.
20; 14; first, file
________ __________ can challenge the validity of a patent or the issuance of one.
To get a patent an invention must be:
Patents will not be granted if an invention was in the public domain for _______ _______ prior to application filing
American Inventors Protection Act - Requires PTO to either issue or deny a patent within ___________ years after filing of application Provides that non-patent holders may _________ a patent as overly __________.
three; challenge; broad
Copyright Revision Act of 1976 - Only _______ ________ are subject to copyright registration and protection.
Sonny Bono Copyright Term
Extension Act of 1998 - Grants copyright terms to __________ + ________ _______ for an individual or less than ____ ________ from the year of first publication for corporate copyright holders.
Life of author + 70 years; 95 years
Law permits certain __________ unauthorized use of copyrighted materials.
Trademarks registered with PTO Original registration of a mark is valid for______ years. Can be renewed for unlimited number of______-year periods.
Trademark - Distinctive mark, symbol, name, word, motto, or device that identifies the ________ of a particular business.
Service Mark - Distinguishes the __________ of the holder from those of its competitors.
Certification Mark - Certify that goods and services are of a certain quality or originate from particular________________ areas.
Collective Mark - Used by cooperatives, ________________, and fraternal organizations.
To qualify for federal protection a mark must be ___________ or have acquired a ___________ ____________.
distinctive; secondary meaning
__________ is a defense to a trademark claim.
Trademark Infringement Recovery:
Order for destruction
Damages to business and reputation
____________ Name: Term for a mark that has become a common term for a product line or type of service and therefore has lost its trademark protection.
Contractors and employess act as __________ for the business.
___________ duty not to act adversely to the interests of the principal.
___________ liable for tortious conduct of agent acting within the scope of authority.
Liability based on the common law doctrine ___________ ____________.
Principal not liable for intentional torts of agents and employees that are committed outside the principal's __________ _____ _____________.
scope of business
Principal _______ liable for intentional and innocent misrepresentations made by agent within scope of employment.
Principal who_____________ agent to enter into a contract with third party is liable on the contract.
Under the Tort Liability of Principals and Agents to Third Parties if there is a misrepresentation claim against the agent's conduct, is the agent liable? What about the principal?
Yes; Principal is liable for the intentional and innocent misrepresentations made by agent acting within the scope of his or her authority.
Under the Tort Liability of Principals and Agents to Third Parties if there is a negligence claim against the agent's conduct, is the agent liable? What about the principal?
Yes; Principle is liable under doctorine of respondeat superior if agent's negligent act was committed within scope of employment.
Under the Tort Liability of Principals and Agents to Third Parties if there is an Intentional Tort claim against the agent's conduct is the agent liable? What about the principle?
Yes; According to the motivation test, principal is liable if agent's motivation in commiting the tort was to promote the principal's business. Also under the work-related test, principle is liable if agent committed the torn within work-related time and space.
Independent Contractor - person _____ subject to ____________ control.
Liability for Independent Contractor's
Contracts: ______________ liable if contractor authorized to act as agent.
Principal generally ________ liable for torts of independent contractors. May be liable for ____________ __________ ___________ or __________ __________ of contractor.
not; inherently dangerous activities; negligent selection
Independent contractors _______________ liable for their own torts.
In contrast to an independent contractor, who ultimately controls the details and progress of his or her own work, an employee is _______________ by the business.
__________ ____________ ______________ compensate workers and their families when workers are injured in connection with their jobs.
Workers' Compensation Acts
___________ is one of the few states to allow employers to be "non-subscribers" to a workers' compensation injury program.
To recover under workers' compensation, the worker's injuries must have been _______________-___________.
Workers cannot sue their____________ in court for damages. Except when employer______________ injures an employee.
Occupational Safety and Health
Act (1970) led to the establishment of the ____________ _____________ and ___________ ___________. Federal, state, and local governments are exempt.
Occupational Safety and Health Administration (OSHA).
OSHA is empowered to administer the act and adopt _________ and ____________ to interpret and enforce it.
____________ ____________ __________ - Employers have duty to provide a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
General Duty Standard
Fair Labor Standards Act (1938) does what?
Prohibits child labor.
Establishes minimum wage requirements.
Establishes overtime pay requirements.
Department of Labor defines standards for lawful child labor.
Newspaper Delivery, Working on the family farm
Managerial, administrative, and professional employees exempt from ___________ _____________.
Employers are required to pay covered (nonexempt) workers at least the federal ____________ ____________ for their regular work hours, and
_______ times regular pay for hours in excess of 40 hours in a week.
minimum wage; 1.5
Consolidated Omnibus Budget Reconciliation Act (COBRA) - _____________ employee must be offered the opportunity to continue group health insurance.
Unemployment Compensation: Employers pay ________ to fund.
Employee Retirement Income Security Act (ERISA): Prevents _________ and other abuses associated with __________ ___________ plans.
fraud; private pension
Family and Medical Leave Act (FMLA): Guarantees workers up to ________ weeks of unpaid leave in a 12-month period to attend to family and medical emergencies
Immigration Reform and Control Act (IRCA): Makes it ___________ for employers to hire illegal immigrants. Employers are required to complete INS Form I-9 attesting legal U.S. citizenship or legal alien status of each employee.
Title VII of the Civil Rights Act of 1964 prohibits ________________ in the workplace
_____________ _____________ - Employer discriminates against specific individual because race, color, national origin, sex, or religion.
___________ ____________- Employer discriminates against an entire protected class.
Often proven by statistical data about employer's employment practices.
Conditions proving sexual harassment:
Quid Pro Quo
Hostile Environment created by supervisors
Hostile Environment creaed by coworkers or nonemployees
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