LEAB flashcards

35 cards. Read the term and the definition here. The deck at the top of this page is optional.

Federal preemption

Doctrine under the Supremacy Clause that invalidates state law conflicting with federal law or occupying the same field. Courts find preemption through express language, field occupation, or impossibility of dual compliance.

Standing elements

Constitutional requirement that a plaintiff show a concrete and particularized injury in fact, fairly traceable to the defendant's conduct, and likely to be redressed by a favorable judicial decision.

Notice-and-comment rulemaking

Informal APA procedure in which an agency publishes a proposed rule, allows public comment, and issues a final rule with a concise general statement of basis and purpose responding to significant comments.

Stare decisis

Principle that courts follow precedent from higher courts in the same jurisdiction. Departure is justified only when precedent is distinguishable, superseded by statute, or unworkable in practice.

UCC firm offer

A merchant's signed writing assuring that an offer will be held open is irrevocable without consideration for the stated time, or a reasonable time, but never longer than three months.

Battle of the forms

UCC 2-207 rule that a definite acceptance with additional terms still forms a contract; between merchants the extra terms enter unless they materially alter the deal or are objected to.

Perfect tender rule

UCC 2-601 standard letting a buyer reject goods that fail in any respect, subject to the seller's right to cure and to the parties' agreed delivery terms.

Statute of frauds categories

Writing required for marriage, year-or-more contracts, land interests, executor promises, surety promises, and UCC goods sales of $500 or more.

Expectation damages

Remedy placing the non-breaching party in the position performance would have achieved, measured by lost profits and cost of cover, limited by foreseeability and mitigation.

Business judgment rule

Presumption that directors acted on an informed basis, in good faith, and in the honest belief the decision served the corporation; courts defer absent breach of loyalty or bad faith.

Piercing the corporate veil

Equitable remedy ignoring limited liability where owners commingled funds, undercapitalized the entity, or used the corporation as a sham to perpetrate fraud or injustice.

Derivative suit demand

Shareholder must demand board action or show futility; futility requires pleading facts creating reasonable doubt that a majority of directors are disinterested and independent.

Entire fairness review

Strict standard for conflicted transactions requiring fair dealing (timing, initiation, negotiation, disclosure) and fair price; burden shifts with approval by disinterested shareholders or independent committee.

Section 16 short-swing profits

Exchange Act provision requiring officers, directors, and 10% holders to report holdings and disgorge profits from purchases and sales within any six-month period, regardless of intent.

At-will employment

Default rule allowing either party to end employment at any time for any lawful reason; termination remains unlawful if motivated by a protected characteristic or protected activity.

McDonnell Douglas framework

Burden-shifting test for disparate treatment: plaintiff shows prima facie case, employer articulates a legitimate reason, plaintiff proves the reason is pretext for discrimination.

Hostile work environment

Unwelcome conduct based on a protected characteristic, severe or pervasive enough to alter employment conditions; employer liability depends on whether the harasser supervised the victim.

NLRA Section 7 rights

Protection for employees to organize, bargain collectively, and engage in concerted activity for mutual aid or protection; Section 8(a)(1) bars employer interference with those rights.

WARN Act threshold

Covered employers with 100 or more employees must give 60 days' notice before a plant closing or mass layoff affecting 50 or more employees at a single site.

FLSA white-collar exemption

Employee exempt from overtime if paid a fixed salary above the threshold and duties meet the executive, administrative, or professional tests; otherwise overtime at 1.5 times the regular rate.

Copyright fixation

Protection attaches when an original work is fixed in a tangible medium; registration is required before suing for US works and unlocks statutory damages and attorney fees.

Fair use factors

Four-factor test: purpose and character of the use, nature of the copyrighted work, amount used relative to the whole, and effect on the market for the original.

Trademark likelihood of confusion

Lanham Act standard barring use of a mark so similar to a registered mark, on related goods, that consumers are likely to be confused about source, sponsorship, or affiliation.

Patent non-obviousness

Utility patent requirement that the invention not be obvious to a person of ordinary skill in the art at the time of filing, considering prior art and secondary indicia like commercial success.

Trade secret elements

Information with independent economic value from not being generally known, subject to reasonable measures to maintain secrecy; misappropriation is actionable under state law and the DTSA.

DMCA safe harbor

Section 512 shield for online service providers that designate an agent, adopt a repeat-infringer policy, and expeditiously remove infringing material after proper notice, with counter-notice procedures.

Work made for hire

Copyright ownership rule vesting in the employer for employee works within scope of employment, or for nine statutory commissioned categories with a signed written agreement.

Model Rule 1.6 confidentiality

Lawyer must not reveal client information without informed consent, except to prevent reasonably certain death or substantial bodily harm, or as law or court order requires.

Concurrent conflict of interest

Rule 1.7 situation where representation of one client is directly adverse to another, or a significant risk exists that duties to one client will materially limit representation of another.

Upjohn warning

Advice to an employee interviewed by corporate counsel that the lawyer represents the company, the conversation may be disclosed to it, and the employee may seek personal counsel.

FCPA books and records

Foreign Corrupt Practices Act requirement that issuers keep accurate records and maintain internal accounting controls, independent of any bribery charge; the facilitating-payments exception is narrow.

Arbitration delegation clause

Contract provision clearly assigning arbitrability questions to the arbitrator; courts enforce it and will not decide gateway issues absent a challenge to the clause itself.

Risk treatment options

Four responses to identified risk: avoidance (eliminate activity), reduction (controls), transfer (insurance or indemnity), and acceptance (retain residual exposure with monitoring).

Litigation hold

Duty to preserve potentially relevant documents and electronically stored information once litigation is reasonably anticipated; breach risks adverse inference instructions, sanctions, or default judgment.

Forum selection clause enforceability

Presumptively valid contractual choice of forum, enforceable unless the resisting party shows enforcement is unreasonable or the clause resulted from fraud or overreaching.