OBC General Legal cheat sheet

Sources of law hierarchy: constitutional text > statute > regulation > case law/administrative guidance; a regulation conflicting with a statute is invalid to the extent of the conflict.

Stare decisis: a holding binds lower courts in the same appellate jurisdiction; dicta are persuasive only and do not bind.

Civil burden of proof is preponderance of the evidence (more likely than not); criminal is beyond a reasonable doubt.

Elements of a valid claim: duty/right, breach or violation, causation (actual and proximate), and legally cognizable harm.

Void vs. voidable: a void act has no legal effect from the outset; a voidable act stands until the protected party elects to rescind.

Standard of review: findings of fact are upheld unless clearly erroneous; questions of law are reviewed de novo.

Rule of lenity: ambiguity in a penal provision is construed against the drafter (the regulator) and in favor of the regulated party.

Regulatory preemption: federal law displaces conflicting state law only where Congress clearly intended exclusive occupation of the field.

Formation requires offer, acceptance, consideration, capacity, and legality; a firm offer by a merchant may be irrevocable without consideration if signed and assurances of firmness are given.

Mirror-image rule is relaxed: a definite and seasonable expression of acceptance operates as acceptance even with additional terms; different terms drop out between merchants unless objected to.

Statute of frauds categories: land interests, suretyship, marriage consideration, contracts not performable within one year, and goods of $500 or more.

Anticipatory repudiation allows the non-breaching party to suspend performance and sue immediately, or await performance for a commercially reasonable time.

Expectation damages place the non-breaching party in the position performance would have produced; consequential damages require foreseeability at formation.

Duty to mitigate: the non-breaching party may not recover damages that reasonable efforts could have avoided; mitigation expenses are recoverable.

Liquidated damages are enforceable if a reasonable forecast of anticipated harm at formation and not a penalty; otherwise the clause is void and actual damages govern.

Specific performance is limited to unique goods or land; otherwise the remedy at law (money damages) is presumed adequate.

Agency requires consent, on behalf of the principal, and subject to the principal's control; no writing is required unless the underlying act falls within the statute of frauds.

Actual authority arises from express or implied manifestations by the principal; apparent authority arises from the principal's manifestations to a third party that reasonably induce reliance.

Ratification: a principal who accepts benefits of an unauthorized act with knowledge of material facts is bound as if authority had been granted.

Respondeat superior: a principal is liable for an employee's torts within the scope of employment; an independent contractor's torts generally do not create liability absent nondelegable duty or apparent agency.

Scope of employment factors: time, place, purpose, and whether the conduct was of the kind the employee was employed to perform and actuated at least in part to serve the employer.

Duty of loyalty bars an agent from self-dealing, usurping corporate opportunities, or competing during the agency; the duty survives termination as to confidential information.

Termination: agency ends by agreement, expiration, revocation, renunciation, death or incapacity; apparent authority may persist until third parties receive notice.

At-will employment may be terminated for any lawful reason; public-policy, implied-contract, and good-faith exceptions are jurisdiction-specific.

Business judgment rule: directors are presumed to act in good faith and on an informed basis; the presumption is rebutted by fraud, self-dealing, or failure to inform.

Fiduciary duties of care and loyalty apply to directors, officers, and controlling shareholders; entire fairness review applies to conflicted transactions absent approval by disinterested directors or shareholders.

Piercing the corporate veil requires abuse of the corporate form, such as commingling, undercapitalization, or fraud, plus resulting injustice.

Partnership: absent an agreement, profits and losses are shared equally, and each general partner has equal management rights and joint and several liability.

Limited liability company members are shielded from entity debts; management may be member-managed or manager-managed as the operating agreement specifies.

Derivative actions require demand on the board or futility; the demand is excused where a majority of directors is conflicted.

Corporate formalities: articles of incorporation, bylaws, board resolutions, and annual meetings; failure to observe formalities supports veil piercing.

Dissolution triggers winding up: creditors are paid first, then distributions to owners per the governing statute and agreement.

Estates: fee simple absolute is perpetual and inheritable; life estate ends at death; future interests (remainder, reversion) follow the preceding estate.

Recording acts: race, notice, and race-notice; a subsequent good-faith purchaser prevails over an unrecorded prior interest where the statute so provides.

Adverse possession elements: actual, open and notorious, exclusive, continuous, and hostile for the statutory period.

Fixture test: annexation, adaptation, and intent of the parties determine whether personalty becomes part of the realty.

Security interest attachment requires value given, debtor's rights in the collateral, and a security agreement; perfection by filing, possession, or control.

Priority: a perfected security interest beats an unperfected one; among perfected interests, first to file or perfect generally prevails; purchase-money security interests in consumer goods perfect automatically on attachment.

Mortgage foreclosure: senior liens survive sale; junior liens are extinguished but attach to surplus proceeds.

Easements: express, implied, prescriptive, and necessity; an easement appurtenant runs with the land, while in gross benefits a specific holder.

Negligence elements: duty, breach, actual cause, proximate cause, and damages; res ipsa loquitur permits an inference of breach where the instrumentality was in the defendant's exclusive control.

Duty of care is owed to foreseeable plaintiffs; the standard is a reasonable person under like circumstances, with professionals held to the ordinary skill of their profession.

Professional malpractice requires the standard of care, a breach, causation, and damages; expert testimony is typically required to establish the standard except in obvious cases.

Comparative negligence reduces recovery proportionally; contributory negligence bars recovery entirely in the few jurisdictions retaining it.

Assumption of risk requires actual knowledge and voluntary acceptance of a specific risk.

Strict liability applies to abnormally dangerous activities and defective products; product defects include design, manufacturing, and failure to warn.

Defamation elements: a false statement of fact, publication, fault, and harm; public figures must prove actual malice.

Statutes of limitations and repose bar claims after fixed periods; the discovery rule may delay accrual where harm is latent.

Rulemaking requires notice of proposed rule, opportunity to comment, and a concise general statement of basis and purpose; formal rulemaking adds trial-type hearings.

Adjudication determines specific parties' rights; due process requires notice and an opportunity to be heard before a neutral decision-maker.

Judicial review of agency action: courts defer on factual findings supported by substantial evidence but decide legal questions de novo; agency interpretation receives deference only as the governing statute allows.

Exhaustion of administrative remedies is generally required before judicial review; ripeness and standing also gate access to court.

Arbitrary and capricious review asks whether the agency examined the relevant data and articulated a rational connection between facts and choice.

Compliance programs: risk assessment, written policies, training, monitoring, hotlines, and remediation; effective programs can mitigate penalties.

Licensing: operating without a required license may render contracts unenforceable and exposes the licensee to civil and administrative penalties.

Freedom of information and recordkeeping duties: regulated entities must retain records for statutory periods and produce them on lawful demand.

Duty of competence requires the knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Confidentiality covers all information relating to the representation; the attorney-client privilege protects confidential communications seeking legal advice and survives termination.

Current-client conflicts: a lawyer may not represent a client directly adverse to another current client absent informed consent confirmed in writing from both.

Former-client conflicts: a lawyer may not use confidential information to the former client's disadvantage or take a substantially related matter adverse to the former client without consent.

Imputed disqualification: a firm is disqualified when any lawyer in it is personally disqualified, unless the personally disqualified lawyer is screened and no fee sharing applies.

Business transactions with clients require fair and reasonable terms, full disclosure, and written informed consent; the client must be advised to seek independent counsel.

Fee agreements must be reasonable; contingent fees are prohibited in criminal and most domestic-relations matters.

Candor to the tribunal: a lawyer may not knowingly make a false statement of fact or law and must correct prior material misstatements.

Personal jurisdiction requires minimum contacts plus fair play and substantial justice; general jurisdiction exists where the defendant is at home.

Subject-matter jurisdiction: federal courts need a federal question or diversity with an amount in controversy exceeding $75,000.

Pleadings must give fair notice; motions to dismiss test legal sufficiency, while summary judgment requires no genuine dispute of material fact.

Discovery scope is relevance to any party's claim or defense, proportional to the needs of the case; privilege and work product are protected.

Arbitration: the Federal Arbitration Act enforces written agreements; courts decide gateway questions unless the parties clearly delegate them to the arbitrator.

Mediation is facilitated negotiation; the mediator has no authority to impose a result.

Evidence relevance requires probative value; Rule 403 excludes evidence whose probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

Hearsay is an out-of-court statement offered for its truth; exemptions include opposing party statements, present sense impressions, and excited utterances.

Burden of production shifts with evidence; the burden of persuasion remains with the party bearing it throughout trial.

Precedent weight: a decision from a higher court in the same jurisdiction binds; a decision from a sister jurisdiction is persuasive only.

Equitable maxims: equity follows the law, and one who seeks equity must do equity; equitable relief is discretionary.

Statutory interpretation tools: plain meaning, structure, legislative history, and purpose; plain text controls absent ambiguity.

Burden of persuasion in civil cases rests with the plaintiff; affirmative defenses must be pleaded and proved by the defendant.

Statute of limitations begins to run when the claim accrues, typically at injury or discovery of the injury.

Jurisdiction over the person may be waived; subject-matter jurisdiction may not be waived or conferred by consent.

Legal fiction and presumptions: rebuttable presumptions shift the burden of production; conclusive presumptions cannot be rebutted.

Regulatory capture risk justifies separation of rulemaking, enforcement, and adjudicative functions within an agency.

Offer must be definite as to parties, subject matter, price, and time; advertisements are generally invitations to treat unless they are definite and leave nothing to negotiate.

Acceptance is effective on dispatch under the mailbox rule unless the offer specifies receipt; option contracts require consideration to be irrevocable.

Conditions precedent must occur before a duty of performance arises; substantial performance satisfies the condition absent material breach.

Material breach excuses the non-breaching party's remaining performance and permits damages; minor breach permits damages only.

UCC perfect tender rule applies to sale of goods: the buyer may reject goods that fail in any respect, subject to cure rights.

Impracticability, frustration of purpose, and impossibility discharge duties where an unforeseen event makes performance objectively impossible or the purpose wholly defeated.

Reliance and restitution are alternative measures where expectation damages are unavailable or speculative.

Parol evidence rule bars prior or contemporaneous oral terms that contradict a fully integrated writing; it does not bar evidence of fraud or ambiguity.

Agent's duties to principal: loyalty, obedience, reasonable care, accounting, and disclosure of material information.

Principal's duties to agent: compensation, reimbursement, indemnification, and good faith.

Undisclosed principal: the third party may sue either the agent or the principal, but the principal may not be liable where the agent's identity was concealed and the third party relied on that concealment.

Independent contractor test: control over means and methods, skill required, method of payment, and whether the work is part of the employer's regular business.

Whistleblower protections generally prohibit retaliation for reporting violations; the scope of protected activity is defined by statute.

Employment discrimination claims require protected class, adverse action, and causal connection; burden-shifting frameworks allocate the burden of production.

Wage and hour rules: exempt employees are salaried and perform executive, administrative, or professional duties; nonexempt employees receive overtime.

Vicarious liability for intentional torts is limited to conduct reasonably foreseeable or in furtherance of the employer's business.

Shareholder rights: vote, inspect books and records, receive dividends when declared, and sue derivatively.

Dividends may be declared only from surplus or current earnings as statutes permit; improper distributions expose directors to liability.

Closely held corporations may impose transfer restrictions and shareholder agreements; minority oppression claims arise where reasonable expectations are defeated.

Merger requires board approval and shareholder vote; dissenting shareholders may have appraisal rights.

Officers are agents of the corporation and owe fiduciary duties; their authority may be actual, implied, or apparent.

Securities law basics: registration requirements and antifraud rules prohibit material misstatements and omissions in connection with the purchase or sale of securities.

Insider trading liability attaches where material nonpublic information is traded in breach of a duty of trust or confidence.

Bankruptcy basics: automatic stay, priority of claims, and discharge of debts; secured creditors retain liens on collateral.

Deeds: quitclaim conveys whatever interest the grantor has; warranty deeds include covenants of seisin, quiet enjoyment, and warranty against encumbrances.

Title insurance protects against defects in title; a title search reveals recorded interests and liens.

Landlord-tenant: covenants of quiet enjoyment and habitability; constructive eviction occurs where conditions render the premises uninhabitable.

Zoning and land use: nonconforming uses may continue but generally cannot be expanded; variances require undue hardship.

Condemnation requires public use and just compensation under the takings clause.

Secured transactions: after default, the secured party may repossess without breach of the peace, dispose of collateral in a commercially reasonable manner, and account for any surplus.

Guaranties and suretyship: a surety is directly liable and may seek reimbursement; a guarantor is secondarily liable.

Environmental liens and CERCLA liability may attach to current owners and operators regardless of fault.

Premises liability depends on the entrant's status: invitee, licensee, or trespasser; the duty owed differs by status.

Negligent infliction of emotional distress requires a close relationship or a bystander's presence at the scene and observation of the injury.

Economic loss rule bars negligence recovery for purely economic losses absent physical injury or a special relationship.

Fiduciary duty claims against professionals require a relationship of trust and confidence and a breach causing harm.

Joint and several liability: where defendants act in concert or the harm is indivisible, each may be liable for the full judgment; several-only jurisdictions apportion.

Insurance coverage: notice conditions, cooperation clauses, and exclusions determine the insurer's duty to defend and indemnify.

Settlement and release: a release of one joint tortfeasor may discharge others where the statute so provides; comparative fault governs allocation.

Punitive damages require clear and convincing evidence of malice, oppression, or fraud and are subject to constitutional proportionality review.

Administrative subpoenas must be authorized by statute, reasonable in scope, and relevant to a lawful purpose.

Informal agency guidance is not binding law but may be considered in enforcement decisions; regulated parties may rely on it only as the agency permits.

Self-reporting and cooperation credit: voluntary disclosure before investigation typically reduces penalties.

Consent orders and settlements bind the parties and may impose ongoing compliance obligations monitored by the agency.

Licensing revocation requires notice, a hearing, and findings supported by substantial evidence.

Regulatory inspections: a warrant may be required for nonconsensual inspection of commercial premises in certain contexts; consent must be voluntary.

Appeals from agency decisions generally go to an administrative tribunal first, then to a court of general jurisdiction.

Recordkeeping and reporting deadlines are strict; late filings may trigger penalties and loss of safe harbors.

Informed consent requires the client's agreement after the lawyer communicates adequate information about the material risks and alternatives.

Prospective clients are protected: a lawyer may not use information learned in a consultation to the disadvantage of the prospective client.

Third-party payers may not control the representation or interfere with the lawyer's independent professional judgment.

Fee sharing with non-lawyers is generally prohibited except for certain retirement plans and specified arrangements.

Safekeeping property: client funds must be held in trust, kept separate, and accounted for; commingling is prohibited.

Advertising must not be false or misleading; testimonials and comparisons require disclaimers where mandated.

Withdrawal requires court permission where litigation is pending; a lawyer must return unearned fees.

Reporting misconduct of another lawyer is required where it raises a substantial question as to honesty, trustworthiness, or fitness.

Venue rules determine the proper court within a jurisdiction; forum non conveniens permits dismissal where another forum is substantially more appropriate.

Class certification requires numerosity, commonality, typicality, adequacy, and predominance of common questions.

Pretrial motions in limine seek to exclude evidence before trial; rulings are reviewed for abuse of discretion.

Jury instructions must correctly state the law; failure to object contemporaneously waives the error.

Judgment as a matter of law is granted where no reasonable jury could find for the non-moving party.

Appellate review: final judgments are generally appealable; interlocutory appeals require statutory authorization.

Settlement agreements are enforceable contracts once the material terms are agreed, even if a formal document is contemplated.

Expert testimony is admissible where the witness is qualified and the methodology is reliable and relevant.