Term
What is source authority?
Describe each type of source authority by hierarchy. |
|
Definition
Primary sources that establish the law, including:
- US Constitution and State Constitutions
- Statutory Law: laws passed by congress, state legislatures, or local governing bodies
- Regulations created by administrative agencies such as the FDA
- Case Law and common law doctrines |
|
|
Term
| What is secondary authority? |
|
Definition
| books and articles that summarize and clarify the primary sources of law (i.e. legal encyclopedias) |
|
|
Term
| What is the Uniform Commercial Code? |
|
Definition
| It facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions. The UCC assures businesspersons that their legal contracts normally will be enforced |
|
|
Term
| What happens when law conflicts? |
|
Definition
| Law is trickled down by the hierarchy of source authority. Higher authority takes precedence. |
|
|
Term
| What is the Doctrine of Stare Decisis? |
|
Definition
| A doctrine, formed in practice, under which judges are obligated to follow the precedents established within their jurisdictions or districts |
|
|
Term
| What happens when there is no legal precedence? |
|
Definition
These cases are called cases of first impression.
Judges will look at precedents from other jurisdictions for guidance. |
|
|
Term
| What is the Bill of Rights? |
|
Definition
| The first 10 amendments of the US Constitution which provide greater constitutional protection for individual liberties by specifically limiting governmental power. |
|
|
Term
|
Definition
| Beginning in the English legal system, a body of general rules that applied throughout the entire English ream was established by the king's courts. The common law tradition was adapted by all nations that were once British colonies. |
|
|
Term
|
Definition
| Judge-made law, including interpretations of constitutional provisions, of statues enacted by legislatures, and of regulations created by administrative agencies |
|
|
Term
|
Definition
| the legal means to enforce a right or redress a wrong |
|
|
Term
| What is an equitable remedy? |
|
Definition
| these remedies include specific performance (ordering a party to perform and agreement as promised), an injunction (ordering a party to cease engagement in a specific activity or to undo some wrong or injury), and rescission (cancellation of a contract) |
|
|
Term
| How do you find/retrieve a case? |
|
Definition
| Consult the regional reporters and/or case citations |
|
|
Term
| What is binding authority? |
|
Definition
| any source of law that a court must follow when deciding a case, including: constitutions, statues, legal precedents, etc |
|
|
Term
| What is persuasive authority? |
|
Definition
| precedents from other jurisdictions; used by judges when deciding cases of first impression |
|
|
Term
|
Definition
| courts in which trials are held and testimony is taken; typically of a civil nature |
|
|
Term
| What is an appellate court? |
|
Definition
| courts that generally do not conduct new trials, but review the proceedings of other trial courts to determine whether the trial court committed an error. |
|
|
Term
| What is a Statute of Limitations? |
|
Definition
| written laws passed by a legislative body in common law systems to restrict the maximum time after an event that legal proceedings may be initiated |
|
|
Term
| What are restatements of law? |
|
Definition
| compilations of the common law, drafted by The American Law Institute which generally summarizes the common law rules followed by most states |
|
|
Term
|
Definition
| A wrong against society proclaimed in a statute and punishable by society through fines and/or imprisonment - or in some cases, death. |
|
|
Term
|
Definition
| spells out the rights and duties that exist between persons and their governments, as well as the relief available when a person's rights are violated. |
|
|
Term
| What is the Privileges and Immunities Clause? |
|
Definition
| Article IV, Section 2, of US Constitution provides that the Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. It prevents a state from imposing unreasonable burdens on citizens of another state - particularly with regard to means of livelihood or doing business. What a citizen of one state engages in basic and essential activities in another state, the foreign state must have a substantial reason for treating the nonresident differently from its own residents. |
|
|
Term
| What is the Full Faith and Credit Clause? |
|
Definition
Article IV, Section 1, of the US Constitution provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.
ex) my contract in Georgia will be enforced in Florida and vice versa
this clause only applies to civil matters. It ensures that rights established under deeds, wills, contracts, and similar instruments in one state will be honored by other states, including judicial decisions with respect to such property rights. |
|
|
Term
| What are the government's checks and balances? |
|
Definition
a system of checks and balances allows each branch of the government to limit the actions of the other two branches.
ex) legislative branch makes laws but the executive branch (president) has the ability to veto.
ex) congress determines the jurisdiction of the federal courts and the president appoints federal judges with consent of the senate, but the judicial branch has the power to hold actions of the other two branches unconstitutional. |
|
|
Term
| What is the Commerce Clause? |
|
Definition
Article I, Section 8 of the constitution explicitly permits congress "to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes."
Essentially, this clause delegates the power to regulate inter-state commerce to the national government.
See Wickard v. Filburn: growing wheat in excess of limit for on-farm consumption. The farmer lost. |
|
|
Term
| What is the dormant commerce clause? |
|
Definition
The fact that the national government has express grant of authority over inter-state commerce implies a negative aspect, being that the states have no authority to regulate interstate commerce. This negative aspect is often referred to as the dormant (implied) commerce clause.
This typically comes into play when state regulations affect interstate commerce.
See case about wineries. Massachusetts statute discriminated against out-of-state wineries, thus affecting interstate commerce. |
|
|
Term
What is the Supremacy Clause and Federal Preemption?
FCC V. Oklahoma |
|
Definition
Article VI of the constitution (supremacy clause) provides that the constitution, laws, and treaties of the united states are "the supreme Law of the Land." When there is a direct conflict between a federal law and a state law, the state law is rendered invalid.
When congress chooses to act exclusively in an area in which the federal gov't and the states have concurrent powers, preemption occurs.
FCC V. Oklahoma: the state's regulation of liquor advertising was deemed unenforceable on out-of-state broadcast signals. |
|
|
Term
| Freedom of Speech: what is commercial speech? how is it protected? |
|
Definition
the courts give substantial protection to commercial speech (advertising and marketing) made by business firms that involve only their commercial interests. This provision is less extensive than the protection of non-commercial speech.
ex) states may restrict certain kinds of advertising in the interest of preventing consumers from being misled.
ex) states may impose restraints on billboard advertising because they have a legitimate interest in roadside beautification. (ex) law preventing a nude dancing establishment from billboard advertising was constitutionally permissible. |
|
|
Term
|
Definition
| NYSLA denied application for brand label approval in New York because it could be seen by children on the grocery store shelves. The US Court of appeals reversed the judgment in favor of Bad frog because the labels lacked a "reasonable fit" with the state's interest in shielding minors from vulgarity. |
|
|
Term
| What is unprotected speech? |
|
Definition
certain types of speech will be unprotected under the First Amendment.
Threatening speech and pornography, speech that harms the good reputation of another, slander, obscene speech, fighting words, false advertisement, fraud, etc... |
|
|
Term
| What defines obscene speech? |
|
Definition
| The Miller Test: (1) the average person finds that it violates contemporary community standards; (2) the work taken as a whole appeals to an arousing or obsessive interest in sex; (3) the work shows offensive sexual conduct; and (4) the work lacks serious redeeming literary, artistic, political, or scientific merit. |
|
|
Term
| What are the protections of the first amendment? |
|
Definition
| guarantees the freedoms of religion, speech, and the press and the rights to assemble peaceably and to petition the government |
|
|
Term
|
Definition
| Prohibits unreasonable searches and seizures of persons or property. |
|
|
Term
Searches and seizures in the business context.
US vs. Hartwell |
|
Definition
a warrant normally is not required for seizures of spoiled or contaminated food. Nor are warrants required for searches of businesses in such highly regulated industries as liquor, guns, and strip mining.
US v. Hartwell: Mr Hartwell attempted to board a plane while in possession of cocaine. this was discovered when he set off the alarm at the airport security checkpoint. He claims his 4th amendment rights were violated because the search was suspicionless. A federal appellate court held that airports can be treated as highly regulated industries and that suspicionless checkpoint screening of passengers is constitutional. |
|
|
Term
What is due process?
Two types of Due Process? |
|
Definition
Both the 5th and 14th amendment provide that no person(legal entity: includes corporations) shall be deprived of life, liberty, or property, without due process of law.
(1)Procedural due process requires the gov't to give proper notice and an opportunity to be heard to anybody before taking life, liberty or property.
(2) Substantive due process protects an individual's life, liberty, or property against certain gov't actions regardless of the fairness of the procedures used to implement them. If a law limits a fundamental right, the state must have a legitimate and compelling interest to justify its action. Only when state conduct is arbitrary, or shocks, the conscience will it rise to the level of violating substantive due process. |
|
|
Term
| What happens when a fundamental right is affected by state/federal law? |
|
Definition
| the gov't interest must be legitimate and compelling to justify its actions. Otherwise, it violates substantive due process. |
|
|
Term
| What is the equal protection clause? |
|
Definition
| essentially, the gov't cannot enact laws that treat similarly situated individuals differently. Under the 14th Amendment, a state may not deny to any person within its jurisdiction the equal protection of the laws. |
|
|
Term
| What is the Moral Minimum? |
|
Definition
| The minimum acceptable standard for ethical business behavior is normally considered to be in compliance with the law. |
|
|
Term
| What is profit maximization? |
|
Definition
| Ultimately, profit maximization, in theory, leads to the most efficient allocation of scarce resources. Short-run profit maximization may lead to ethical business problems, while long-run profit maximization is consistent with business ethics. |
|
|
Term
| What are duty based ethics? |
|
Definition
| ethical standards that are derived from revealed truths, such as religious precepts, or derived through philosophical reasoning. |
|
|
Term
| Where does contract law come from? What is its source authority? |
|
Definition
| The common law governs all contracts except when it has been modified or replaced by statutory law, such as the UCC, or by administrative agency regulations. |
|
|
Term
| Why is contract law important? |
|
Definition
| it is designed to provide stability and predictability, as well as certainty, for both buyers and sellers in the marketplace. |
|
|
Term
|
Definition
Promisor: the person making the promise
Promisee: the person to whom the promise is being made. |
|
|
Term
|
Definition
A promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.
Simply, a contract is a legally binding agreement between two or more parties who agree to perform or to refrain from performing some act now or in the future. |
|
|
Term
| What are the elements of a contract? |
|
Definition
(1) Agreement: includes an offer and acceptance
(2) Consideration: promises must be supported by something of value received or promised, such as money
(3) Contractual Capacity: all parties entering into a contract must be competent
(4) Legality: The contract's purpose must be to accomplish some goal that is legal and not against public policy |
|
|
Term
| What are the defenses to a contract? |
|
Definition
(1) Voluntary consent: consent of both parties must be voluntary; contract cannot be formed as a result of fraud, undue influence, mistake, or duress
(2) Form: the contract must be in whatever form the law requires; ex) some contracts must be in writing to be enforceable. |
|
|
Term
| Unilateral vs Bilateral contracts |
|
Definition
Bilateral: promise for a promise; the offeree can accept simply be promising to perform.
Unilateral: promise for an act; the offeree can accept the offer only by completing the contract performance. |
|
|
Term
| Degree to which contracts have been performed: Executed vs Executory |
|
Definition
A contract that has been fully performed on both sides is called an executed contract.
A contract that has not been fully performed by the parties is called an executor contract.
Each side of a contract can be considered executed or executory, but if one side has not yet performed the entire contract, as a whole, is considered executory. |
|
|
Term
| What is a formal contract? |
|
Definition
a contract that requires a special form or method of creation to be enforceable
ex) negotiable instruments such as checks, drafts, promissory notes, and certificates of deposit |
|
|
Term
| What is an informal contract? |
|
Definition
| any contract that is not considered a formal contract. No special forms are required as the contracts are usually based on their substance rather than their form. |
|
|
Term
| What is an express contract/implied contract? |
|
Definition
express: any contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.
ex) a signed lease for an apartment or house is an express written contract.
implied: a contract that is implied from the conduct of the parties rather than their words.
a contract can be a mixture of both the express and implied nature. |
|
|
Term
| What are the requirements for an implied contract? |
|
Definition
normally, if the following conditions exist, a court will hold that an implied contract was formed:
(1) the plaintiff furnished some service or property
(2) the plaintiff expected to be paid for that service or property, and the defendant knew or should have know that payment was expected.
(3) the defendant had a chance to reject the services or property and did not. |
|
|
Term
| What does a contract need to be enforceable? |
|
Definition
All four elements of a contract:
(1) Agreement
(2) Consideration
(3) Contractual Capacity
(4) a Legal Purpose |
|
|
Term
| What is a voidable contract? |
|
Definition
| a valid contract that can be avoided at the option of one or both of the parties. The party with the option can elect to either avoid and duty to perform or ratify(make valid) the contract. |
|
|
Term
| What is a quasi contract? |
|
Definition
| contracts that are implied in law, but are not actual contracts; fictional contracts that courts can impose on the parties "as if" the parties had entered into an actual contract. They are equitable rather than legal contracts, and are imposed to avoid unjust enrichment of one party at the expense of another. |
|
|
Term
|
Definition
| When the court imposes a quasi contract, a plaintiff may recover in quantum meruit, a phase meaning "as much as he or she deserves." It essentially describes the extent of compensation owed under a contract implied in law. |
|
|
Term
| What are limitations on Quasi-contractual recovery? |
|
Definition
| a party who has conferred a benefit on someone else unnecessarily or as a result of misconduct or negligence cannot invoke the principle of quasi contract. The enrichment in those situations will not be considered "unjust". |
|
|
Term
| What is the Plain Meaning Rule? |
|
Definition
| When a contract's writing is clear and unambiguous, a court will enforce it according to its obvious terms. A court cannot consider and evidence not contained in the document itself. however, if a contract's terms are unclear or ambiguous, extrinsic evidence may be admissible to clarify the meaning of the contract. |
|
|
Term
| What are the Rules of Construction? |
|
Definition
The courts use the following rules in interpreting contractual terms:
(1) insofar as possible, a reasonable, lawful, and effective meaning will be given to all of a contract's terms.
(2) a contract will be interpreted as a whole; individual, specific clauses will be considered subordinate to the contract's general intent.
(3) terms that were the subject of separate negotiation will be given greater consideration that standardized terms and terms that were not negotiated separately.
(4) a word will be given its ordinary, commonly accepted meaning, and a technical word or term will be given its technical meaning, unless the parties clearly intended something else.
(5) specific and exact wording will be given greater consideration that general language.
(6) written or typewritten terms will prevail over preprinted ones.
(7) When the language of a contract has more than one meaning, it will be interpreted against the party who drafted the contract.
(8) Evidence of usage of trade, course of dealing, and course of performance may be admitted to clarify the meaning of an ambiguously worded contract. |
|
|
Term
| What is an offer and what are the three elements of an offer? |
|
Definition
an offer is a promise or commitment to do or refrain from doing some specified actions in the future.
(1) the offeror must have a serious intention to become bound by the offer.
(2) the terms of the offer must be reasonably certain, or definite, so that the parties and the court can ascertain the terms of the contract.
(3) the offer must be communicated to the offeree. |
|
|
Term
| Expressions of Opinion. legally binding? |
|
Definition
| an expression of opinion is not an offer. It does not indicate an intention to enter into a binding agreement. |
|
|
Term
| Statement of future intent. legally binding? |
|
Definition
| a statement of intention to do something in the future is not an offer. |
|
|
Term
| Preliminary negotiations. legally binding? |
|
Definition
| a request or invitation to negotiate is not an offer. It only expresses a willingness to discuss the possibility of entering into a contract. |
|
|
Term
| Are advertisements considered offers; legally binding? |
|
Definition
| in general, advertisements are treated as invitations to negotiate, not as offers to contract. |
|
|
Term
| What is an auction in reference to legally binding offers? |
|
Definition
| a seller is making an offer to receive offers through an auctioneer. The offer is accepted when the auctioneer strikes the hammer. Before the fall of the hammer, a bidder may revoke her or his bid. |
|
|
Term
| Auctions: with reserve vs. without reserve |
|
Definition
with reserve: the seller may withdraw the goods at any time before the auctioneer closes the sale by announcement or by fall of the hammer.
without reserve: goods cannot be withdrawn by the seller and must be sold to the highest bidder.
all auctions are considered to be actions with reserve unless explicitly stated to be without reserve. |
|
|
Term
| Definite terms of a contract |
|
Definition
generally, a contract must include the following terms, either expressed in the contract or capable of being reasonably inferred from it:
(1) identification of the parties
(2) identification of the object or subject matter of the contract, including work to be performed, with specific identification of such items as goods, services, and land.
(3) the consideration to be paid
(4) the time of payment, delivery, or performance |
|
|
Term
| Communication of an offer. Is it necessary? |
|
Definition
| an effective offer must be communicated to the offeree. Ordinarily, one cannot agree to a bargain without knowing that it exists. |
|
|
Term
| How do we terminate an offer? |
|
Definition
Revocation: an offeror can generally revoke an offer as long as the revocation is communicated to the offeree before the offeree accepts
Rejection: if the offeree rejects the offer, by words or by conduct, the offer is terminated.
counteroffer: a rejection of the original offer and the simultaneous making of a new offer. |
|
|
Term
How can we make an offer irrevocable?
What is an Option? |
|
Definition
courts refuse to allow an offeror to revoke an offer when the offeree has changed position because of justifiable reliance, or promissory estoppel.
Another form of irrevocable offer is an option contract: created when an offeror promises to hold an offer open for a specified period of time in return for a payment given by the offeree. |
|
|
Term
| How is an offer terminated by operation of law? |
|
Definition
(1) lapse of time
(2) destruction of the specific subject matter of the offer.
(3) death or incompetence of the offeror of the offeree
(4) supervening illegality of the proposed contract |
|
|
