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LEGL 2700 Final: Legal Exam Review

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University of Georgia
Legal Studies
LEGL 2700

Legal Exam Review Chapter 1- Intro • Law o Rules laid down by state and backed by enforcement o Rule of law ▪ No one is above the law • Property rights o Public property o Private property o Common property (more than 1 person owns) • Key elements o Transparency o Equal access • Jurisprudence o Natural law ▪ Law contains universal moral principles observable in nature o John Locke ▪ Individual is proprietor of own person, actions ▪ You own self, labor, creations o Positive Law ▪ Law is commands of state backed by enforcement o Historical school ▪ Law is an expression of particular people o Sociological jurisprudence ▪ Laws can and should change to meet new developments in society o Legal realism ▪ Law is what officials do about it • Classifications of Law o Common law ▪ Judge centered o Civil Law ▪ Legislation centered o Public Law ▪ Constitutional law ▪ Administrative law ▪ Criminal law o Private Law ▪ Contract law ▪ Tort law ▪ Property law o Substantive law ▪ Creates, defines, regulates rights o Procedural law ▪ Rules of the game, how substantive law is made • Sources of law o Federal law o State law o Judicial decisions Chapter 2- Ethics • Ethics v. Morals o Ethics: rules of conduct from external source o Morals: Personal beliefs of right and wrong • Formalism v. Consequentialism o Formalism: Acts are inherently right or wrong regardless of context ▪ Categorical imperative: act to others as you think they should to you ▪ Social Contract Theory: Everyone must have basic rights o Consequentialism: focus on moral consequences of actions, not actions themselves ▪ Utilitarianism: actions judged by their usefulness and if they increase common good • 5 Ethical Themes in Business o Respect the rights of others o Good faith o Due care o Confidentiality o Conflict of interest • Obstacles o Focus on profit o Effect of the group o Control of resources by non-owners • Promotion o Involve top management o Openness in communication o Consideration of all stakeholders Chapter 3- The Court System • Judges o Trial ▪ Laws used in case, fact finder if no jury o Appellate ▪ Decide questions of law • Juries o Fact finders • Attorneys o Admins of justice • Federal Courts o Pertain to matters where: ▪ U.S. is a party ▪ Questions of federal law ▪ Diversity of citizenship • Everyone must be from a different state, >$75,000 ▪ Disputes between states • Federal Court system o Supreme Court o District courts (51) o Appellate Courts (13) • State Courts o General jurisdiction o Trial o Appellate o State supreme court Chapter 4- Litigation • Parties o Plaintiff o Defendant o Counterclaim (defendant sues plaintiff) • Standing to sue o Litigation involves a case or controversy (must be connected to law) o Must claim a personal stake in resolution • Jurisdiction o Personal ▪ Court’s authority over parties of the case o Long Arm ▪ Beyond state boundaries, if defendants has: • Committed a tort in state, owns property in state, violated contract in state • Litigation Steps o Pleadings ▪ PleadingsDocument filed with court to begin process • Complaint • Answer o Discovery ▪ Devices: • Interrogatories • Request for documents • Depositions • Request for admission o Omits pleadings no longer in dispute ▪ Motions: • To dismiss • To compel discovery • Summary judgment o Jury Selection ▪ Preemptory Challenge ▪ Batson v. Kentucky o Burden of Proof ▪ Criminal • Beyond a reasonable doubt ▪ Civil • Preponderance of evidence (greater weight to support your side) • Clear and convincing proof o Post-Trial issues ▪ Appellate brief • Description of case and why it should be overturned ▪ Oral argument • Attorneys given time to explain position in case o Enforcement ▪ Garnishment ▪ Execution ▪ Res Judicata Chapter 5- Alternative Dispute Resolution • Types o Negotiated Settlement o Focus groups o Mediation ▪ Non binding o Arbitration ▪ Statutory • Disputes within certain boundaries must arbitrate first, non-binding ▪ Voluntary/Contract • Binding, cannot appeal Chapter 6- The Constitution • Separation of power o Federalism ▪ States have some sovereignty but cannot limit federal government o Supremacy clause o Commerce clause o Contract clause • Amendments and Protections o Freedom of religion ▪ Establishment clause: cannot establish religion o Freedom of Speech nd▪ Overbreadth doctrine o 2 Amendment ▪ Well regulated militia ▪ Right is not unlimited o 5 amendment ▪ Takings clause (eminent domain) o 14 Amendment ▪ Due process clause • Procedural Due Process o Must give notice of taking away a right • Substantive Due process o Incorporation doctrine ▪ Equal Protection • Suspect classification Chapter 7- Property • Property o Legal right to exclude others from resources • Property Divisions o Real property ▪ Ownership to land and land interest o Personal property ▪ Applies to moveable resources, tangible and intangible • Ownership o Fee Simple ▪ Absoluteproperty owned forever with no limitations attached ▪ Defeasible property has a condition attached o Life Estate ▪ Reversion interest • Property reverts to original owner after person’s death ▪ Remainder interest • Beneficiaries receive land if specified before death o Leasehold Estate ▪ Property rights granted to tenant by landlord o Concurrent Ownership ▪ Joint tenancy: Equally divided ownership • 4 Unities: Possession, interest, time, title • Right of survivorship ▪ Tenancy in Common • Unequal ownership • No right of survivorship • Resource Acquisition o Accession ▪ You own expansions on property o Gift o Exchange o Possession ▪ Rule of first possession ▪ Adverse possession • Open and notorious • Actual and exclusive • Continuous • Wrongful • Prescribed period of time o Confusion • Security Interests o Mortgage ▪ Recording statutes ▪ Foreclosure ▪ Deficiency ▪ Right of redemption o Secured Transaction (inventory) ▪ Attachment ▪ Perfection rd • Against 3 parties • Restrictions o Nuisance ▪ Public ▪ Private ▪ Character, extent, duration of harm measured against utility of property o Zoning Chapter 11- Intellectual Property • Types o Trade Secrets ▪ Claims: Establish secret exists, demonstrate a misappropriation ▪ Enforcement • CivilInjunctions and monetary damages • Criminaleconomic espionage act, only enforced by federal government ▪ Prevention: • Confidentiality and non-compete agreements o Patent ▪ Utility 20 years ▪ Design 14 years ▪ Plant  20 years ▪ Material: • Novel, non-obvious, have utility • Can’t be natural phenomena or math formulas o Trademark ▪ Types • Service markmark associated with a service • Certification mark certify quality/characteristics of a good • Collective mark  membership in certain organization • Trade dress  shape, color scheme, font of product ▪ Disqualifiers • Similar to currently used mark • Contains prohibited material (US flag, US presidents) • Merely descriptive • Generic ▪ Enforcement • Civildamages • Criminal  counterfeit ▪ Dilution • Blurring • Tarnishment o Copyright ▪ Must be: original, fixed in tangible medium, show some creative expression ▪ Enforcement: • Must violatereproduction, creation of derivative works, distribution, performance/display • Exceptions: o **Fair Use: Criticism, comment, teaching ▪ Purpose, effect on market, amount used, nature of work Chapter 8- Contracts • Elements o Offer o Acceptance o Consideration o Capacity o Legality • Types o Bilateral ▪ Agreement containing mutual promises o Unilateral ▪ Only a promise on one side, acceptance on other side ▪ Confidentiality agreement o Express ▪ Parties discuss and negotiate terms o Implied in fact ▪ Terms implied based on conduct of parties o Quasi ▪ One party unjustly enriched at expense of other • I.E. overpayment no contract to pay money back, but implied in law • Elements o Offer ▪ Definite terms ▪ Termination: • Revocation • Rejection • Counter offer • Lapse of time ▪ Termination by law • Subject matter jurisdiction (contents of offer = illegal) • Offeror insanity/death • Change in law o Acceptance ▪ Bilateral parties make promises ▪ Unilateral  duty is performed ▪ Mirror image rule • UCC 2-207: New terms are part of contract ▪ Mailbox rule o Consideration ▪ Bilateral  Promises ▪ Unilateral  promise and performance ▪ Invalid: • Pre-existing obligation • Promise to make a gift • Promissory Estoppel o When you rely on another’s promise • Defenses/Claims o Fraud ▪ Misrepresentation of fact ▪ Intent to deceive ▪ Justified reliance on misstatement ▪ Injury resulting from reliance o Innocent misrepresentation o Mutual mistake o Duress o Undue influence Chapter 9- Contract Execution • Rules of interpretation o Common words given common meaning o Handwritten words > Typed terms > Pre-printed terms o Ambiguous terms interpreted against drafter of contract • Parole evidence o Oral evidence ▪ If introduced in court, cannot change meaning of contract o Evidence of oral agreement that explains terms ▪ Permissible • Performance o What parties promise to do o Conditions ▪ Condition precedent: something must take place in future before party performs ▪ Condition subsequent: excuses performance if some future event occurs o Levels ▪ Complete • Every duty fulfilled ▪ Material breach • Level of performance not acceptable ▪ Substantial performance • Less than adequate but enough done to avoid breach o Excuses ▪ Impossibility • Impossible to perform task ▪ Commercial impracticability • Not impossible but drastically more expensive ▪ Waiver • Party intentionally relinquishes right to performance after non- performance ▪ Release • Party decides other does not have to perform (pre non-performance) • Breach of Contract o Damages: ▪ Compensatory: plaintiff in same position they would be if defendant performed ▪ Consequential: Arise from foreseeable damages (lost sales) • Duty to mitigate ▪ Liquidated: parties agree on set damages if breach occurs • Equitable Relief o Specific performance ▪ Must perform what you said you would o Recission ▪ Each party returns consideration, back to square one o Injunction ▪ Court order to stop doing something • Third Party Rights rd o 3 party beneficiaries ▪ Party not directly involved, right to sued when named as intended beneficiary ▪ Creditor Beneficiaries • Someone who is owed money off of performance of another ▪ Donee Beneficiary • Someone who is not owed money but benefits from contract (life insurance) • Assignments o Assigning someone the right to receive your payment o Restrictions ▪ Notice ▪ Restrictions against certain parties ▪ Anti-assignment clause • Novations o To avoid getting sued, pass on rights to another party, they step into your shoes Chapter 10-Torts • Torts o A civil wrong based on law/legislation o 2 Types ▪ Intentional ▪ Negligence • Intentional Torts o Fraud ▪ Material misrepresentation made to induce reliance, justifiably relied upon, and injury as a result o Interfering with business relations ▪ Injurious falsehood: publishing untrue statements to interfere with a business/product ▪ Interference with contractual relations (employee poaching) o Defamation ▪ Publication of untrue statements about another and damaging reputation ▪ Defenses: • Truth • Privileged communications (testifying in court) • Public figures (malice or reckless disregard for the truth) o Invasion of privacy ▪ Appropriation of name or likeness for own personal use ▪ Invasion of physical solitude ▪ Public disclosure of personal info o Assault o Battery o False imprisonment o Trespassing o Conversion (stealing) • Negligence Torts o 5 Elements: ▪ Exi
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