LEB test #1

title insurance

title insurance

provides insurance that grantor is transferring good title

options to purchase

the one receiving possession of the property has a specified period of time within which to decide whether to purchase or return it

requirements for patentability

-patentable subject matter

-non-obviousness

-novelty

-usefulness

relatively certain, relatively flexible, known/knowable, apparently reasonable

characteristics of legal rules

certainty

many of our activities are based on the assumption that legal principles will remain stable into the forseeable future

flexibility

many changes occur- and with each change presents new legal problems that must be resolved

knowability

obedience of law requires some knowledge of the rules, or a least a reasonable means of acquiring the knowledge

reasonableness

rules have to appear reasonable to the great majority of people if they are going to be obeyed for long

common law

rules and principles currently existing in any state regardless of their historical origin, that result from judicial decisions in those areas of law where legislatures have not enacted statutes establishing definitive rules

statutory law

rules that have been formally adopted by legislative bodies rather than by courts

-constitutions, city ordinances, treaties, etc.

civil law

laws that spell out the rights and duties existing among individuals, business girms, and gov agencies

-ex. contract law, tort law, sales law

damages

sum of money equivalent to the loss suffered as a result of the defendants wrong- outcome of civil law

injunction

a court decree ordering the defendant to do or not do something- civil law

criminal law

statutes by which a state/ federal gov prohibits specified kinds of conduct and which additinally provide for the imposition of fines or imprisonment on persons convicted of violating them

public law

area of law direcctly concerned with the government- individual or gov-business relationship

private law

concerned with the creation and enforcement of the rights of one individual against another

courts of limited jurisdiction

the lowest-level court in a state's judicial system that hears particular kinds of cases involving small claims, traffic violations, and minor criminal infractions

general trial courts

virtually all important cases involving contract law, criminal law, and corporation law

empowered to hear all cases except those assigned by statute to courts of limited jurisdiction

appellate courts

all states have one or more, hear appeals from judgements entered by the courts below

decide legal questions; they do not hear testimony of witnesses or otherwise entertain new evidence, instead the court seeks to determine whether material legal errors were committed by the trial court

Specialized U.S. Courts

courts that have very specialized subject matter jurisdiction, including the U.S. Tax Court, which hears only federal tax cases and the U.S. Claims Court, which hears only claims against the U.S. government

U.S. District Courts

Courts within the lowest tier of the three-tiered federal court system; courts where litigation begins.

Part of the federal government- have power to hear only those cases that have been specifically placed within their jurisdiction

appellate courts

-hear appeals from U.S. disctrict courts

-13 courts located in "circuits" across the country

-appeals from judgement sof the US courts of appeal can be taken to the US Supreme court

Subject Matter Jurisdiction

the power of a court to hear a particular type of case

one requirement for jursidiction

personal jurisdiction

A court's authority over the parties to a lawsuit

one requirement of jursidction

federal courts

have subject matter jurisdiction oer only those kind of cases specified by the US constitution

Removal from State to Federal Court

if the plaintiff chooses state court, the defendant may have a right of removal:

-within a short time after the plaintiff files the case in state court, the defendant may have the case moced to a federal district court in the same geographic area

appearance

defendant automatically submits to the courts personal jurisdiction if they make an appearance- either in person or through an attorney

special appearance

a motion or other formal action taken by the defendant solely for the purpose of challenging the court's personal jurisdiction

service of summons

formal notice of a lawsuit done through either a sherrif, marshall or attorney

registered agent

person a corporation has to receive summons and other legal notices in states where it is incorporated and doing business

long arm statute

A state statute that permits a state to exercise jurisdiction over nonresident defendants.

in rem cases

State/federal courts inherently have jurisdiction over any item of property in the forum state (Real estate, tangible/intangible personal property)

Court has power to render decision on status of title of property without personal jurisdiction

venue

where in the state the lawsuit is heard

-typically either the county where the defendant resides or where the accident happened

-if there are two possible veneus, plaintiff may choose among them

forum non conveniens

a rule that allows a court, in equity, to decline jurisdiction over a case when it believes that the matter would be better resolved in another forum. Usually this is invoked when most of the parties and witnesses to a case are in another location, making it more convenient for the trial to be held there, rather than where the case was filed.

conflict of laws

A situation in which the laws of two or more jurisdictions differ and may exert a different result on a legal case depending on which system is deemed to have jurisdiction.

choice of law

-a common provision in a contract that specified what law must be used to resolve a dispute that arises between the parties to a contract

-designed to prvent a plaintiff with multiple jurisdictions from "forum shopping" when there is a conflict law

contract cases

when there is conflict of laws for these cases modern courts attempt to determin the state with the "most significant relationship" to the parties and the transaction:

-the place of contracting

-place of negotiation

-place of performance

-location of the subject matter of the contract

-residence and place of business of the parties

courts of equity

a plaintiff wanting some other relief such as an injunction or a decree of specific performance brought an action to equity

actions at law

lawsuits that involving requests for monetary damages

adversarial system

-appraoch to litigation in which the parties themselves, acting through their attorneys

-trial procedures designed to resolve conflict through the clash of opposing sides, moderated by a neutral, passive judge who applies the law

inquisitorial system

the judge will have the authority to decide which issues will be addressed, although the parties will provide important imput

judges are usually in charge of the investifation and gathering evidence

pleading state, discovery stage

pretrial proceedings consist of two stages

pleading stage

1.) Plaintiff files petition or complaint

2.) defendant's answer is next

-defendant can file motion to dismiss instead of answer

-answer usually contains a denial

3.)plaintiffs repy to defendants answer make up pleadings of the case

-defendant has around 20 days to respond or risks default judegement

discovery stage

the parties attempt to collect more evidence for trial

discovery proceedings

evidence discolusre required before the trial as a result of the 1938 Federal Rules of Civil Procedure

depositions

testimony under oath

interrogation

written questions submitted by one party to the other

request for production of documents

discovery tool for uncovering paper evidence in a case, permits party to get access to business records

spoilation

the destruction or alteration of relevant documents

summary judgement

the evidence produced during discovery makes it so clear that the moving party is legally entitled to prevail that a trial would be a waste of time

trial by jury

The right of a person to be tried by a jury, or a group of citizens, to decide if the person is guilty or innocent of committing a crime.

burden of proof

the obligation to present evidence to support one's claim

the plaintiff must convince the fact finder that it is more likely than not that each of its key allegations is true

direct examination

The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney's client.

attorney cannot ask leading questions

cross-examination

questioning of a witness conducted by the lawyer for the opposing side

attorney can ask leading questions

irrelevant, hearsay, opinion

rules of evidence- evidence must exclude:

hearsay

oral or written evidence made by someone who is not testifying or if the evidence is offered as proving truth of that statement

judgement as a matter of law

a motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case

trade secret

any type of knowledge that is not generally known and is not readily available through legal means

if the knowledge gives its owner a competitive advantage over rivals who do not have the knowledge

negotiated settlement

an out-of-court settlement between the parties themselves

even when lawsuits are filed 95% are resolved without a trial

arbitration

-settling a dispute by agreeing to accept the decision of an impartial outsider

-no discovery

-completely private

commercial arbitration

-disputes regarding any type of business transaction

federal arbitration act

written commercial arbitration agreements and arbitrator awards are legally enforceable if the underlying business transaction affected interstate commerce

arbitration clause

-a clause in a contract that requires disputes arising out of the contract to be submitted to arbitration

-typically inserted by firms into contracts with employees and consumers where the latter typically have very little bargaining power or little to no choice in the matter

labor arbitration

resolving disputes within the labor-,anagement context, usually when the particular group of employees is represented by a union

mediation

A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.

stare decisis

Let the decision stand; decisions are based on precedents from previous cases

mandatory authority

authority originating in courts above the trial in the appellate chain

persuasive authority

Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision.

- a judge studies a decision from another states appellate chain and finds it persuasive

statutory interpretation

the process by which courts interpret and apply legislation

plain meaning rule

A rule of interpretation which states that words in a contract should be given their ordinary meaning.

separation of powers

one branch should not encroach on the powers of another branch

checks and balances

A system that allows each branch of government to limit the powers of the other branches in order to prevent abuse of power

judicial review

-not expressed in the constitution

-federal courts have the final say in whether the constitution has been violated by a federal law or an execution action

-congress cannot enact a law that changes the supreme courts interpretation of the constitution

delgation of powers

-congress may expressly delegate legislative power to the two other branches

- valid as long as congress: indicated basic policy objective and provides some degree of guidance to how power will be exercised

delegated powers

Powers specifically given to the federal government by the US Constitution, for example, the authority to print money.

reserved powers

Powers given to the state government alone, the rest of the powers that reside with the states

state police power

Power that permits states and local governments to enact laws to protect or promote the public health, safety, morals, and general welfare.

commerce clause

-Clause stating that Congress can regulate interstate and international commerce.

- Article I section 8 of constitution

commerce

includes anything remotely related to an economic activity

federal preemption

a principle asserting the supremacy of federal legislation over state legislation when both pertain to the same matter

express preemption

-A federal law or regulation containing language explicitly displacing or superseding any contrary state or local laws

-cpngress specifiec in legislation that the states have no power to adopt laws that exercise the power

implied preemption

When Congress has chosen to regulate some activity but has said nothing about whether the states do or don't have power to pass related laws

Field Preemption

congress indicated an intention to regulate an entire field, which therefor leaves no room for state regulation

conflict preemption

the state regulation conflicts with the provisions of the federal legislation and it is impossible for people or firms to comply with both/ state law substantially interferes with purpose of federal law

discrimination against interstate commerce

state cannot pass a law that discriminates against interstate commerce even if there is no preepmtion of any kind

unduly burden interstate commerce

A concept that says states may enact laws that protect or promote the public health, safety, morals, and general welfare, as long as the laws do not unduly burden interstate commerce.

bill of rithts

first 10 amendments, only applies to federal government, not state or local

due process clause

14th amendment clause stating that no state may deprive a person of life, liberty, or property without due process of law

-serves as a vehicle for applying everything in Bill of Rights to state or local governments

Doctrine of Incorporation

In constitutional law, the application of the Fourteenth Amendment's due process protections to incorporate the provisions of the Bill of Rights and make them applicable to the states.

priveleges and immunities clause

prohibits states from discriminating against citizens of other states when those nonresidents engage in ordinary and essential activities

-states can treat residents differently if it protects a legitimate local interest

Equal Protection Clause

Constitutional guarantee that everyone be treated equally-14th amendment

Strict Scrutiny

A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal

Intermediate Scrutiny

the standard used by the courts to decide cases of discrimination based on gender and sex; burden of proof is on the government to demonstrate an important governmental interest is at stake in treating men differently from women

due process of law

no person deprived of life, liberty, or property without due process of law

substansive due process

has been used to protect the right to privacy and other rifhts that are fundamental

has also been used to restrain governement conduct that "shocks the conscience"

procedural due process

guarantees that the government will follow fair procedures before taking certain actions against individuals or companies

administrative procedures act

specifies the type of procedures federal agencies must follow when engaging in legislative type rule making

takings clause

-applies explicitly to the federal government, but through the doctrine of incorporation, applies to state and local governments

-states that private property shall not be taken for public use without just compensastion

real property

-land and most things attached to the land

-usually referred to as real estate

land

everything above and beneath the surface of the earth

ownership includes both air space above it and soil from its surface to the center of the earth