Bar Exam

IIED: damages

Actual damages: severe emotional distress (no nominal damages); proof of physical injury is not required - More outrageous the conduct, the less proof of damages required Family members do not generally have to prove physical injury Bystanders: DO have to show physical injury to the other Recovery: physical injury, pain and suffering

Battery: tort

An act, with the intent, to cause harmful or offensive contact, to a person, and that act resulted

Trespass to Land

An act, with the intention to ENTER, no actual damages required

Evidence: Presumption

"Bursting Bubble" Approach: Most presumptions can be rebutted by evidence that contradicts the presumption - Judge WILL instruct the jury on the presumption IF one party lays a proper foundation for the presumption and the other party does not introduce any contrary evidence - Judge will NOT instruct the jury on the presumption IF other party produces even a SCINTILLA of evidence that is credible which contradicts the presumption

Financing Statement: Mistake

(1) D's name on FS cannot be seriously misleading - IF filing office's standard search logic can retrieve erroneous FS then it is not seriously misleading - If filing officer's mistake: it is still valid, not liable for their mistake (2) SP's name: error in SP's name will NOT be seriously misleading (search not done under SP's name)

Equal Protection: Impact

(1) Disparate Impact: NOT sufficient to demonstrate Purposeful Discrimination (rational review) (2) Purposeful Discrimination: Disparate Impact + Purposeful (strict scrutiny): - Discriminating purpose is the motivating factor in the state action - Watch for: history of discrimination, departure from normal proceedings, recent change that disadvantages a group, pattern otherwise unexplainable

Intestate Models

(1) English Per Stirpes: Always divide at child level (4 kids: each kid all the way down get 1/4) (2) Moder Per Stirpes: Divide at 1st generation with surviving heir (divide evenly at bottom level) (i.e. one child alive, divide at child level, one grandchild alive: divide equally at grandchild level) (3) Representational (majority): Divide at 1 generation with surviving heir, all parties in bottom level are treated the same (put it back in the pot and divide)(recombined at each successive generation)

Corporations: Liability to Creditors

(1) Entity: Corp. can be held liable to 3rd parties for Ks, torts, and violations of statutes (2) SHs: generally protected from personal liability, can lose investment in stock UNLESS PCV (3)

Class Actions: SMJ************

(1) FQ: Class claim asserts a FQ (2) Diversity: Consider ONLY class reps (ignore rest of class); Rep's claim MUST exceed $75k

Financing Statement: Lifespan

(1) FS is valid for 5 years from date of filing: CAN be extended but MUST file extension in last 6 months of the five years (between 4.5 and 5: not before or after) - Failure to file extension: old one dies (lose priority) and perfection date becomes date of filing new one (2) Satisfaction of the loan: once D satisfies the loan, send authenticated demand letter to C; C MUST provide D with termination statement w/in 20 days AND file termination statement in filing office w/in one month - C's failure to file: liable to D for $500 plus any loss incurred

Pretrial Adjudication

(1) Failure to State a Claim*****: (D moves to dismiss for failure to state claim: EVEN if facts are true P could not win judgment (might allow P to amend) - Court will ONLY look at allegations of fact (NOT conclusions of law); ONLY at face of complaint NEVER at evidence; aka: Motion for Judgment on the Pleadings (if after answered)) (2) Motion for Summary Judgement (No genuine dispute of material fact AND movant is entitled to judgment as a matter of law) - MUST request anytime BEFORE 30 days after discovery has ended - Court WILL look at evidence proffered under oath (affidavit, declarations, deposition testimony, or interrogatory answers) - Evidence (i) MUST be first hand knowledge (ii) Does NOT have to be good/reliable evidence AS LONG AS it shows dispute of material fact (crackhead testimony) (iii) evidence CAN be eliminated IF completely discredited by other evidence (i.e. video showing event) - Pleadings are NOT evidence unless verified under oath - Failure to deny allegation of fact in pleading IS evidence - Court MUST view evidence in light most favorable of non-movant

Priority: SP vs. Buyer of Collateral

(1) General: Buy item w sec int: sec int remains with the item UNLESS: (i) sec party authorizes OR buyer buys from seller in ordinary course of business - Authorized sales: Express OR Implied (i) sale of inventory in ordinary course of business- EVE if knows of sec int (if in good faith: does not know sale violates SP's rights) (NOT liquidation sales) OR (ii) authorization through acquiescence (SP waives right to object if fails to act) (2) Unauthorized sales: Buyers NOT in ordinary course of business: take subj. to perfected int BUT free from unperfected in UNLESS they know of it at the time (3) NOTE: remember, only takes free from THAT sellers sec. int (A (not in ordinary course) sells to B (sec int attaches) B (in ordinary course) sells to C (sec int from A is still attached) Remedy: can sue B for breach of warranty

Mortgage: Grantee

(1) Grantee who "assumes" is personally liable (2) Grantee who takes "subject to" is NOT personally liable (prop may be foreclosed on but cannot go after personal assets) (Presumed if deed is silent)

Establishment Clause: Lemon Test

(1) Has a secular purpose (2) Primary effect neither advances/inhibits religion (3) No excessive entanglement w religion (not coercive in nature)

Wills: Curative Doctrines

1. Substantial Compliance Doctrine: court may deem a defectively executed will as being in accord with formalities IF there is clear and convincing ev that the decedent intended the doc be his will 2. Harmless Error: Even if not compliant; P can show by clear and convincing evidence that doc or writing constitutes: (i) decedent's will (ii) a partial or complete revocation of the will (iii) an addition or alteration of the will OR (iv) a partial or complete revival of a formerly revoked will or portion thereof

Bona Fide Purchaser (BFP)

(1) Subsequent, (2) Pay Value (substantial pecuniary consideration, not necessarily fair market value) (3) Without Notice AND of Good Faith (lacking knowledge a reasonably prudent person would not have known)

Equal Protection: class

(1) Suspect Classes: race, alienage (2) Semi-protected Classes: gender, national origin, illegitimate children (3) Unprotected Classes: age

Adverse Possession: tacking and tolling

(1) Tacking: requires privity (any non-hostile nexus (blood, contract, deed, will) Ouster defeats tacking (no tacking when there has been an ouster (2) Tolling: SOL will not run against true owner who is afflicted by disability at the START of the adverse possession (insanity, incarceration, medical, infancy)

Equal Protection

14th A Congress CANNOT create new rights or expand the scope of rights; has the power to enforce, by appropriate legislation, provision of the article ONLY permitted for remedial purposes- ONLY to prevent or remedy violations of rights recognized by courts AND laws MUST be "proportionate" and "congruent" to remedying constitutional violations - Only against state not private action (except commerce clause)

State Immunity: Exceptions

14th A § 5: Necessary and Proper Clause: - Congress may override ONLY if state's clear intent to override legislation AND fits within court's interpretation of the Amendment's reach State's waiver Suits against state actors in individual capacities, not from state treasury Bankruptcy proceedings

Murder: Felony Murder

1st Degree Felony + A killing = Murder - Eligible felonies (BARRK): burglary; arson; robbery; rape; kidnapping - Mens: intentional; negligent or accidental Defenses***: Same defense as to underlying felony; Death must be foreseeable (almost always); D reached a temporary place of safety (not deaths caused while fleeing from felony); NOT liable for death of co-felon ONLY if as a result of resistance by V or police

Assignment of Rights: formation

2 Steps: 1. Formation of a K between parties 2. One party transfers rights and duties to a 3rd (transferor has NO more rights to K) - Note: not same as 3rd party B: done after K formation

Easement Implied Without Any Existing Use

2 limited situations (1) Subdivision Plot: (i) lots sold in reference to a recorded plot or map showing streets leading to lots (ii) buyers of lots have implied easements to use the streets to access their lots (2) Profit a Prendre: (i) holder of the profit has the right to pass over the surface and use it reasonably to extract the product (mineral, timber, oil) (added benefit of allowing D to take) (ii) profits share easement rules (iii) MAY be extinguished by surcharge (misuse that overly burdens S)

Attachment

3 Required Steps: SA + SP given value + D's obtain right 1. Security Agreement: Either (i) written sec agreement OR (ii) collateral in possession SP pursuant to agreement (can be oral) - Writing requirements: (a) record showing intent to create a sec int, (b) authenticated by D, (c) containing a description of the collateral; CANNOT be super generic "all D's assets" BUT can be generic article 9 "all of D's chattel paper" (if covers timber: desc. of land) 2. SP has Given Value: Value is very liberal: ANY consideration sufficient t create a K (includes past consideration, NOT D given value, always completed because D promises to pay) 3. D has Rights in the Collateral: D actually possesses the collateral (actual/constructive): cannot grant a contingent property int in something D does not own (i.e. couch delivered to D)

Pleadings: Response

3 options:(w/in 21 days of process) (1) ignore it: will enter default (2) Pre-answer motion: (i) motion to strike (aimed at immaterial issues; (ii) motion for more definite statement; (iii) motion to dismiss based on R 12 Defenses

Contracts Clause: Intermediate Strict Scrutiny

3 part test: - Does law substantially impair contract (total destruction not necessary)? - Is there a legitimate public purpose? - is the law a reasonable way of achieving that purpose?

SOF: requirements

1. A writing (or record- i.e. electronic recording)(not a K itself, can be a memorandum) 2. Signature of party seeking to enforce against (unless both parties are merchants: signed by P and D fails to respond within 10 days) 3. Either (a) All material terms (common law)- sufficient content to evidence the K; reasonable certainty (parties, subject matter and terms necessary to make contract definite); Land (price and description of land) OR (b) UCC: indicate sale of goods and quantity

Evidence: Similar Occurrence Exceptions

1. Accident History: ONLY IF (i) prior accident may be cause of current issues injuries) OR (ii) other accidents involve same instrumentality/condition AND occurred under substantially similar circumstances for 3 purposes ONLY: a. existence of dangerous condition b. causation of accident c. prior notice to the D - Substantial similarity test 2. Intent in Issue (prior similar conduct raises inference of person's intent (i.e. conduct: not hiring women; intent: discrimination) 3. Comparable Sales on Issue of Value (similar type of property, in same general location and close in time: it's only some evidence of value) 5. Habit, Routine and Practice

Elements of Intentional Torts (AICH)

1. Act 2. Intent 3. Causation 4. Harm

Easement: Types

1. Affirmative: allows D the right to do something on S's land 2. Negative: Prevents S from doing something on their own land (4 types (LASS): (i) Light, (ii) Air, (iii) Support, (iv) Stream water from artifical flow, (v) Scenic View (minority)) - MUST adhere to SOF

Contracts: Elements

1. Agreement (offer/acceptance) 2. Consideration (legally sufficient) 3. Contractual Capacity (legal competency (mental/age) 4. Legality

Partnership: Winding Up Payments

1. All creditors (first: outside; second: loans by partners) 2. Pay back all invested capital (money paid into P by partners) 3. Profits shared equally (w/o agreement) Insufficient money: Partner's still liable to pay all creditors, including partner loans

RAP: Bright Line

1. Any gift to an open class conditioned on the members surviving to a particular age beyond 21- VIOLATES RAP (bad as to one, bad as to all; entire class gift is void) 2. Many shifting executory interests violate RAP: an executory interest with NO limit on the time within which is must vest- VIOLATES RAP

Relevance: Test

1. Any tendency to make a fact of consequence more or less probable (low burden) 2. Any tendency (could shift fact finder's view to the smallest degree) 3. Of consequence (related to cause of action- loooooow threshold; does not have to be a disputed fact) 4. More or less probable (need not conclusively establish) 5. Opening the door (may cause rise to new fact of consequence; new info may be relevant to rebut)

Transfer of K Rights

1. Assignor: Transferred the rights (away) 2. Assignee (received assignment (to) 3. Obligor: obligated to perform/delegate duties (unless novation remains liable to obligee) 4. Obligee: entitled to performance 5. Novation: Obligee agreed to accept the delegate as a complete substitution and releases obligor from liability

Contracts: Mistake Exceptions

1. Assumption of Risk: allocated expressly in agreement ("as is"), person on notice that, except for matter that cannot be discovered through reasonable investigation no representations are made by silence 2. Conscious Ignorance: mistaken party has limited knowledge regarding material fact but chooses to agree to perform regardless (mistake party's failure to use reasonable care)

2 Part PJ Test

1. CONTACT: (A) Single Isolated OR Continuous and Systematic (B) Connection (between contacts and issue giving rise) (C) Received benefits/protection of the state (D) Purposeful availment (D's own actions; Reasonably foresee being haled into court) (E) Foreseeable that D could be sued in this court 2. FAIRNESS (consider) (A) Burden on Defendant (MUST severely disadvantage D in litigation (almost impossible to show, relative wealth is irrelevant) (B) State's interest in adjudicating the dispute (provide forum for its citizens, adjudicate its laws) (C) Plaintiff's interest in obtaining convenient and effective relief

Contesting a Will: Grounds

1. Capacity 2. Insane Delusion 3. Undue Influence

Co-Tenants: Costs

1. Carrying costs: taxes, mortgage, etc: co-tenant each responsible for share of costs based on divided share of ownership (right of contribution) 2. Repairs: Contribution ONLY for reasonable, necessary repairs, MUST have informed of need, based on divided shares 3. Improvements: NO right to contribution BUT credit for any increase in value from improvements AND bears any liability for drop in value

Adverse Possession: Claim and Color of Title

1. Claim of Title: Expression of the requirement of hostility or claim of right on part of adverse possessor (intent to take another's land as one's own) 2. Color of Title: written instrument or judgment that is for some reason defective and invalid; if adverse actual possession of only a part of the land covered by the writing reaches not only the part occupied but the entire premises described in deed to claimant

Hierarchy of Laws

1. Constitution 2. Acts of Congress and Treaties (last in time prevails)(must actually pass legislation not just consider it) 3. Executive Agreements (foreign policy/affairs) AND Executive Orders (domestic policy) 4. State Law

Fee Simple Absolute

1. Creation: (i) grantor must have fee simple, (ii) "To A" or "To A and his heirs", (iii) general default 2. Distinguishing Characteristics: (i) most complete for of prop interest, (ii) Deviseable, (iii) Descendible, (iv) Freely alienable, (V) Future interests (none in grantor)

Fee Simple Determinable

1. Creation: O to A and his heirs "as long as...", "while the land is...", "until the land is not longer...", "until", "during" 2. Distinguishing Characteristics: (i) O maintains a right to reenter, power of termination passes to O's heirs, (ii) devisable, (iii) descendible, (iv) alienable BUT always subject to the condition 3. Future Interest: subject to SELF-executing condition (vi) RIGHT OF REVERTER** (only future interest in grantor)

Life Estate

1. Creation: O to A for life (NEVER in terms of years) 2. Distinguishing Characteristics: (i) holder is entitled to present and future interests (until death) (ii) not inheritable or divisible (iii) Alienable (buy only for their interest, so only until they die) (iv) doctrine of waste (entitled all ordinary uses and profits of land, must not commit waste) 3. Future Interest: O has reversion, 3rd party has remainder Life Estate Pur Autre Vie: life estate for the lifetime of a 3rd (O to A for B's life)

Fee Simple Subject to Executory Limitations

1. Creation: To A, but if x event occurs, then to B (3rd party involved) 2. Distinguishing Characteristics: like fee simple determinable but if condition is broken estate AUTOMATICALLY terminated in favor of someone OTHER than the grantor (ii) deviseable, descendible, alienable subject to condition 3. Future Interest: Shifting executory interest in 3rd party

Partnership: Dissolution Paths

1. Dissolution and termination 2. Continuation of P and purchase of departing partner's share (requires unanimous vote)

Physician-Patient Privilege

1. Doctor-patient (not federally recognized): MUST be confidential communication (no 3rd), purpose of statement was treatment of medical condition 2. Psychotherapist-patient: mirrors atty/client: Patient & (psychologist/therapist/social worker) & communication & confidential & ONLY info used to obtain therapy Exception: if patient expressly or impliedly puts physical or mental condition in issue (i.e. pursuing damages for physical injury)

Free Speech: Unprotected

1. Fighting Words 2. Inciting Imminent Lawless Action 3. Obscenity 4. Defamatory Speech 5. Some Commercial Speech

Contracts: Risk of Loss

1. Follow terms of express agreement 2. Breaching party pays for uninsured loss even if unrelated 3. Common carrier: risk shifts to buyer when seller completes delivery obligations 4. "Catch All" : when other's don't apply: Is SELLER a merchant? (yes: risk shirts to buyer upon receipt of goods (physical possession); no: shifts to buyer when goods are tendered (i.e. set outside for pickup))

Assignment of Rights: Multiple Assignments

1. Multiple Gratuitous Assignments: Last assignee generally wins (last in time test) 2. Multiple Assignments for Consideration: First Assignee will generally win regardless of amount of consideration UNLESS subsequent Assignee for value BOTH does NOT know of earlier assignment AND is the first to obtain either (i) payment, (ii) a judgment,(iii) a novation, OR (iv) indicia of ownership

PJ: Types

1. Specific Jurisdiction: Minimum Contacts (i) single/isolated or occasional/sporadic (ii) claim arose in that jurisdiction) 2. General Jurisdiction: Substantial Contacts (i) Continuous and systematic (significant enough to render essentially "at home" in forum state) (ii) individual: domicile; business: where formed AND principal place of business AND maybe more (analyze contacts/physical presence) (iii) claim arose anywhere in planet

Spousal Privileges

1. Spousal: ONLY covers grand jury AND criminal proceedings; applies to ALL information (not just communication); ANY observation or communication (private or public matters) that occurred before or during the marriage NOT after (for either) Held by testifying party 2. Marital: ONLY communications from one spouse to another in confidence; applies to civil and criminal; both spouses hold priv. (cannot waive w/o both, during OR after marriage, not before) - Exceptions: (i) communications or acts in furtherance of jointly-perpetrated FUTURE crime/fraud; (ii) communications or acts destructive of the family unit (i.e. dv, molestation); litigation btwn spouses themselves)

Intestate Beneficiaries

1. Spouse w common children (receives all) 2. Spouse not common children (spouse receives 50%, remaining children receive 50%) 3. No spouse (all to issue) 4. No issue (goes to parents: split btwn if not married) 5. No issue or parents (goes up to grandparents and back down after that to state)

Limitations on Warranty Liability

1. Statute of limitations (4 years from tender of delivery) 2. Privity (P contracted with D directly) 3. Buyer's examination of goods (and defect would be obvious upon inspection) 4. Disclaimer (implied warranties, not for personal injury)

Taxing and Spending Power

Article 1 - Congress has the power to spend and tax for the general welfare, to pay debts and to provide for the common defense - Most things considered general welfare Requirements: must be expressly stated; have some relationship with the purpose of the spending program; must not be coercive (not turn into compulsion for state action)

Class Actions: Res Judicata

Absent litigants cannot usually challenge issues open in class actions - Best challenge: lack of adequate representation of their interests (failure of due process; did not fairly protect interests of those who are bound)

Presidential Immunity

Absolute immunity from civil suits fr money damages arising from actions while in office (left to the political realm: media, Congressional oversight) NO immunity for actions that occurred prior to taking office

Contracts: Special Offers

Ads, Circulars, Price Quotes: invitations for offers, lacks requisite certain (no specific offer, no specific quantity) Exceptions: specifications made (enough that reasonable person would believe it is an offer) price quote in response to inquiry; nature of reward (co. promises reward to anyone who does something particular)

Mistake of Fact****

Believes they are doing one thing (legal/illegal) but is actually doing something different (illegal/worse crime) - Only guilty of lesser charge (what intended/thought) - Mistake must be reasonable (will say in facts or be obvious) - ANY mistake no matter how ridiculous IS a defense if charged with a specific intent crime - NEVER a defense for strict liability

Strict Products Liability

Breach of, duty of care, which caused, damages, product reached consumer without substantial change in condition

Burglary

Breaking and entering, of a dwelling, of another, at night, with the intent to commit a felony therein - Breaking (involving some force, however slight): Actual: not if door/window is wide open BUT includes pushing an interior door; Constructive: by fraud or threat - Entering: ANY part of body crosses into the house - Dwelling of another: (common law: not a barn or commercial structure) - At night (common law) - With intent to commit felony (intent MUST exist at time or breaking and entering- not just to sleep) (remember burglary as felony)

Actual Cause

But for, either created the dangerous condition or had knowledge notice thereof

Causation: Actual Cause

But for: - But for the action the social harm would not have occurred when it did; No intent needed

Pleadings: Other claims

CAN join ANY other claim (P several claims against D) BUT must invoke SMJ on each (diversity, FQ, supplemental) OR take to state court

Merger

CANNOT be charged with both: Only 3: (1) Solicitation (2) Attempt (to the crime if committed), AND (3) Larceny (with robbery)

Evidence: Offer to Pay Medical Expenses

CANNOT use evidence of furnishing, promising or offering to pay medical/hospital expenses - Need to be claim or dispute - Does not cover extraneous statements or conduct

Evidence: Pleas, Plea Discussions and Related Statements

CANNOT use: withdrawn guilty plea, offer to plead guilty, Nolo Contender plea, statement of fact made during plea discussions - Plea discussions: subjective expectation: D's belief negotiation is occurring; objective standard: reasonable given circs - D MAY introduce info (only restricts against D) - MAY rebut defense IF in fairness another statement made during discussion ought also be considered

Evidence: Self-Authenticating

COP CANT Certified Copies of public or private records on file in public office; Official publications; Periodicals Commercial paper; Acknowledged document; Newspaper Trade Inscriptions/Labels

Independent Contractor Factors

CRBD LESSN CHARACTER of employment (usually done under employer direction) REGULAR business of employer BELIEF of creation of relationship- master/servant DISTINCT occupation LENGTH of employment EXTENT of control the employer had over the work SKILL required SUPPLIES by employer- tools, place of work NATURE of payment- job/hours

Cross Examination

Can ONLY ask questions within scope of W's direct- UNLESS W would be difficult to recall later - Allowed: Leading questions; questions about W credibility (regardless of subj. matter or ques. asked on direct); -Inconsistent Statement of W is

Witness Impeachment

Can be impeached by either party through: 1. W's Propensity for Truthfulness or Untruthfulness: reputation/opinion ONLY for impeachment (can ONLY rebut after being attacked); extrinsic evidence not admissible to show specific instances of conduct OR to SUPPORT truthful character 2. Witness Prior Statements: May surprise by asking without warning, (must disclose upon opposing party's request), Can ONLY introduce extrinsic evidence IF its central to the case, W has opp to explain, opposing party has opp to question - Can ONLY rehabilitate if impeached BY: 1. Confrontation 2. Extrinsic Evidence: (except prior bad acts AND contradictory facts that are collateral; NO need to confront first EXCEPT for bias)

Warrants: Anonymous/Confidential Informants

Can be used BUT not in itself enough to establish PC Consider: Source reliability, veracity and basis of knowledge AND 1. History of reliability 2. Statement against own peneal interests 3. ToC Crucial Elements: - Explicit and detailed description of alleged wrongdoing (i.e. seen first hand) AND extent of corroboration by officer's investigation

Impeachment: Bad Reputation/Opinion about W's Character for Truthfulness

Can impeach ANY W on this, confrontation NOT needed, CAN use extrinsic evidence (really the only way to do it, need a W to testify about reputation/opinion)

Prior Inconsistent Statement

Can impeach by showing W made a MATERIAL statement that is inconsistent with trial testimony - Admissible ONLY to show that testimony is false NOT as substantive ev that event/fact did not occur - Exception: can be used as substantive AND to impeach IF orally under oath AND as part of formal hearing - Procedure: can be done while W is on stand or later with extrinsic ev BUT W must have opp to return to stand to explain/deny prior statement UNLESS W is the opposing party - IF W is the opposing party; can use ANYTHING opposing party says against them as substantive evidence - Watch for status of W (opposing party or not)

Mental State: General intent Crimes

Catch all: D is aware that she acting in a proscribed way and any required attendant circumstances exist (need not be certain they exist; sufficient that she is aware of high likelihood) - Can be charged w both crimes (ALWAYS 2 crimes on bar; I.e. shot at one woman; killed another woman= charged with 1st degree murder of 1st and attempted murder of intended V)

Defamation: False and Defamatory

Causes damage to P's reputation - Jokes, parodies are not actionable

Contracts: Applicable Law

Common Law: for anything that is not primarily the sale of goods (ALWAYS the sale of land services) - Implied obligation of good faith and fair dealing U.C.C. Article 1: Primarily for ANY sale of goods (tangible personal property) - Consider: type of transaction IS a sale AND subj. matter of transaction is goods

Contracts: Mirror Image Rule

Common Law: response to offer cannot change/add anything (ANY material change/addition to original terms automatically terminates original offer) MUST mirror: quantity, time and place of performance; parties to ; price; subject matter

Contracts: Counteroffer

Common law: Terminates offer UCC: Offeree ships non-conforming goods- is an acceptance and breach UNLESS seasonably notifies offeror goods offered only as an accommodation (buyer not required to accept, may reject but shipper is not in breach) Tip: ONLY when acceptance is through shipment NOT when offeree has already accepted and promised (breach)

Causation: Intervening/Superseding Cause

Consider: Contribution to crime AND Foreseeability of intervening cause (was the outcome so out-of-the-ordinary that it is no longer fair to connect D) - Independent (Coincidental)- only relation to V was put in place where cause occurred (i.e struck by lightning on way to hospital)

Equal Protection: Individual Liberties: Entanglement Exception

Constitution applies if gov't affirmatively authorizes, encourages or facilitates unconstitutional activity (state must be SIGNIFICANTLY INVOLVED, not just acquiescence to thew activity) Entanglement: - Courts cannot enforce racially restrictive covenants - State cannot lease premises to racially discriminatory business - No private entity that regulates interscholastic sports within the state NO Entanglement - Private school over 99% funded by state fires teacher for her speech (no part of the decision) - NCAA orders suspension of black basketball coach - Private club with liquor license from state racially discriminates

Wills: Health care Directives

Constitutional right to make directives through agent - 3 types (1) Instructional directives: living will or medical directive (in writing, signed by adult T or another at T's direction, with witnesses); revocation through ANY manifestation of intent to revoke, regardless of mental/physical condition; (2) Proxy directives: Healthcare proxy or Durable power of attorney (designated agent to make healthcare decisions), (3) Combined directives: incorporates both approaches (direct treatment preferences, designate an agent to make substituted decisions) - Absent a Directive: Court in favor of preservation of life and prevention of withdraw from treatment (responsibilities fall: spouse, adult child, parent, adult siblings)

Free Speech: Regulation

Content Based: strict scrutiny - Subject matter (topic), viewpoint (ideology) Content Neutral: rational review

Lease: Periodic Tenancy

Continues for successive intervals until L or T gives notice to terminate (expressly: month-to-month, week-to-week, year-to-year; or Implied: noting express about duration but rent set in intervals) - SOF if over a year: measured by the way rent is tendered (orally agree to five year rental paid mo. to mo.- NOT an Estate for Years because of SOF, automatically becomes periodic for months) - Termination: must given written notice to terminate (common law: at least equal to the length of the period itself unless otherwise agreed OR year to year- only need 6 mos.); must conclude the the end of a natural lease period (i.e. end f the month) - Holdover: stay beyond conclusion of lease: new rent measured by was rent was on lease, T sends mo. check: L cashes it: becomes mo. to mo.

Buy-Sell Agreements

Contract that requires the corp. or majority SHs to purchase shares in specified situations at a specified price (important provisions: specify events that trigger an obligation to buy/sell stock, i.e. death; purchase price for stock; funding source for stock purchase)

Partnership: Sharing Profits

Contribution of money or services in return for a share of profits creates a presumption that a general partnership exists

Defenses to negligence

Contributory Negligence Assumption of Risk Immunity

Contracts: Public Policy

Courts can refuse to enforce agreement because of public policy (look for exculpatory agreement that exempts intention or reckless conduct from liability OR a covenant not to compete with reasonable need and time/place limitations)

Choice of Law: Family Property Awards

Courts granting alimony or child support MUST have PJ over the spouse whose property rights are in issue

Full Faith and Credit Clause

Courts in one state MUST give full faith and credit to judgments made by courts in another state as long as: - Original court had proper jurisdiction over parties AND subject matter - Judgement was on its merits - Judgement was final

Business Judgment Rule (BJR)

Courts presume that a director's business decision was made in good faith, informed, with honest belief that action was in best interest of the co. (w/ Duty of Care) - NOT guarantor of success - P attacking Board MUST rebut presumption: MUST show D did not make reasonable efforts to inform themselves, breached fiduciary duty or acted in bad faith (intentional dereliction of duty, conscious disregard for one's responsibilities; deliberate indifference and inaction in face of duty to act)

IIED

Extreme and outrageous act, intentionally, causes severe emotional distress, to another, resulting in damages

SMJ:

FEDERAL Court's power over the CASE: (1) Federal Question (2) True Diversity (3) Supplemental

Parol Evidence Rule

Final written agreement of deal replaces ALL earlier agreements Extrinsic evidence: - NOT: to change/contradict terms; source of consistent but additional terms (unless only partial integration OR additional terms would ordinarily be in agreement) - YES: assertion that a mistake was made in integration; determine whether a defense exists (duress, fraud, misrepresentation); resolve ambiguities

Wills: Non-marital children

Father: Unconstitutional to deny equal protection to non-marital children's inheritance rights - MUST have substantial justification as serving an important state interest to deny a person from establishing paternity - Can be evidenced by DNA (even if exhumation is necessary), subsequent marriage of parents, acknowledgment by father, adjudication during life, clear and convincing proof after death

Federal Review: Adequate and Independent State Ground

Federal Court MAY review where a state court's decision is BASED upon FEDERAL interpretation of a similar federal law adequate and independent state grounds will not apply

Personal Jurisdiction

Federal OR State Court's power over PARTIES (Can P sue D in this state?) - 2 Steps: (1) Satisfy statute AND (2) Satisfy the Constitution (due process) - 2 Part PJ Test

Abstention Doctrine

Federal court MAY temporarily refuse jurisdiction over a federal constitutional issue IF it is possible that the state court will dispose of the issues relying on unsettled law

Trusts: Self Declaration

Declaration by the owner of prop that the owner holds identifiable property as trustee for another - Present intent manifested by statement declaring oneself trustee (words) - Delivery means statement professing oneself to be trustee for another

Closing: Transfer

Deed becomes controlling, Requires: (i) writing, (ii) signed by grantor, (iii) reasonably identifies parties and land, (iv) delivery, (v) intent, and (vi) acceptance

Contracts: Unconscionability

Devoid of conscience (consider: does a provision deprive one party of benefits of agreement? does provision leave one party w/o remedy?) 2 types: 1. Procedural: Absence of meaningful choice (opportunity to understand; use of fine print (legalese); deceptive sales practices; take-it-or-leave-it) OR gross inequality of bargaining power (consider wealth, experience, access to counsel) 2. Substantive: K terms shock the conscience (consider market place, parties, respective risks, competition)

Proximate Cause

Direct Cause: without which injury would not have occurred Foreseeability: scope of risk

Contracts: Rejection

Direct Rejection: any attempts by offeree to accept after rejection is an offer; MUST be affirmative ("I reject," not a mere inquiry) Indirect Rejection: offer made by offeree proposing new terms (NOT bargaining- "will you take less?") EXCEPTION: Option Exception: can make a counteroffer in option contract during option period

Negligent Infliction of Solely Emotional Distress

Direct victim: zone of danger, not physically impacted but so as could have been foreseeable, fears for own safety Bystander: Zone of danger, just as foreseeable as victim

Search: Public Schools

Do not need PC only need Individualized Suspicion (less than reasonable suspicion) Includes extracurricular activities and school groups

General Welfare

Does NOT STAND ALONE (not an independent source of power) vehicle that carries into effect, some other law (i.e. can tax and spend for the general welfare)

Implied Warranty of Fitness for Particular Purpose

Does NOT have to be merchant; goods MUST be merchantable (fair/average quality, fit for ordinary purpose for which it is used); Seller knows/has reason to know principal purpose for which goods are required AND buyer is relying on seller's skill/expertise to select goods

Easement: Oral

Does not adhere to SOF so ONLY creates license UNLESS becomes Easement by Estoppel ((i) oral agreement to create easement; (ii) reasonable to foresee that D would substantially change their position believing permission would not be revoked; (III) D did substantially change their position in reasonable reliance on that belief by incurring substantial costs or making physical improvements (or relinquishing some right)

Contracts: Breach of Warranty

Does not have to be through fault of D, only needs to occur; must give seller notice within a reasonable time after discovered/should have been discovered Damages: Only recover Purely Economic damages

Attorney Work Product

Does not need to be disclosed IF written material obtained or prepared by adversarial party in preparation for litigation (Party, Atty, Agent) UNLESS party shows a substantial need AND not otherwise available - MUST provide privilege log: listing any doc requested but not provided

Choice of Law: Torts

Does question involve loss distribution or conduct? 1) Loss distribution: (Vested Rights: apply law in place of wrong (not necessarily injury but wrong) (MSRA: Step 2 consider: Place of: injury, conduct causing injury, residence of parties and where relationship btwn parties is centered) 2) Regulating conduct: apply rule where conduct occurred

Causation: Omissions

Doing nothing so far as the law is concerned- does not supersede earlier wrongful act: both are liable

Terry Frisk

Done during a reasonable investigatory stop, SOLELY for purpose of protecting officer/others from harm, requires reasonable suspicion, and is limited to pat down (plain feel of weapon or contraband, no manipulation of clothing)

Full Faith & Credit: Non-Defenses

Even though not valid, always discuss if appear in facts: (1) Judgment violates Forum Public Policy (I.e. if suit brought in current forum would have been contrary to public policy: too bad, so sad) (2) Mistakes by Judge in Earlier Trial***** (remedy: appeal incorrect judgment) (3) Inconsistent Judgment: if there is conflicting judgments on same issue from two different courts: last in time is the controlling judgement

Learned Treatises

Expert text that is sufficiently authoritative in its field to be admissible as evidence in a court in support of the contentions made therein (periodical, pamphlet) Hearsay exception: direct exam of own W - Can read from treatise, as substantive evidence to prove truth of matter IF established by reliable authority - Cross-examination of other party's expert: read into evidence to impeach and contradict comes in as substantive evidence -BUT learned treatises CANNOT be admitted into evidence as an exhibit - Statement MAY (i) come from any field (ii) offer substantive evidence (iii) accepted as reliable authority (iv) two peculiarities (must accompany expert W, read excerpt into record)

Free Exercise: analysis

Explain Belief Determine Actor Explain Burden: Incidental/Purposeful Decide Level of Scrutiny

Contract: Liquidated Damages

Express K provision that fixes the amount of damages (must be reasonable in light of anticipated or actual loss by breach) 2 part test: 1. damages difficult to determine at time of K 2. Reasonable forecast of the amount of loss *******ALWAYS ALWAYS going to be invalid because they are too high

Title Covenants:

Express promises by the G about the state of title; rights depends on type of title 6 Standard covenants: (1) Covenant of Seisin (2) Covenant of Right to Convey (3) Covenant Against Encumbrances (4) Covenant of Warranty (5) Covenant of Quiet Enjoyment (6) Covenant of Further Assurances Covenant: Protects against defects discovered AFTER closing

Witnesses: Competency

General rule: W is competent UNLESS exception under STATE law or other specific rule (weight of evidence determined by jury) - Capacity to: narrate, understand telling the truth, memory and perception - Oath or Affirmation: must give some statement that indicates the person's going to tell the truth

Warrants: General Informants

General: Set forth facts demonstrating basis for the informant's knowledge of criminal activity AND establish informant's credibility OR credibility through officer's independent investigation 1. History of reliability 2. Statement against own peneal interests 3. ToC

Limited Partnership: Partners

General: same rights/duties as in general partnership (liable for all obligations, right to manage/control) Limited: Not personally liable for the debts, limited managerial control

Free Exercise: GAFN

Generally Applicable Facially Neutral: a law that regulates the conduct of ALL people (rational) - Can be applied to prohibit the conduct of a person despite interference with religious beliefs

Free Speech: Commercial Speech

Generally Protected BUT if (i) proposes unlawful activity OR (ii) is misleading or fraudulent CAN be burdened - Any other burden MUST (i) serve substantial gov int (ii) directly advance that int, and (iii) be narrowly tailored to serve that int - Note: complete bans on truthful advertisement: generally unconstitutional for lack of narrow tailoring; MAY require disclosures on ads if not overly burdensome and reasonably related to state's int in preventing deception - "Commercial Ventures" : govt has discretion when accepting advertising on govt owned property as long as restrictions are viewpoint neutral and reasonably related to legit govt int

Contracts: Nondisclosure

Generally no duty to disclose UNLESS there is a fiduciary relationship

Free Speech: Non-Public & "Commercial Ventures"

Gov't owned property or channel of communication not traditionally open to public discourse (i.e. courtroom, schools in session, military base, city buses, airport, jail) Restriction: VIEWPOINT NEUTRAL (T, P, M and unprotected speech)

Free Speech: Limited Public

Gov't properties not historically linked with speech but held open to host debate on particular community issue Restriction: VIEWPOINT NEUTRAL

Plain View

Government actors must be legitimately present (lawfully present at the vantage point), immediately apparent before officer can seize (obvious as it lays)

Takings Clause: Possessory

Government confiscation or physical occupation of property is ALWAYS a taking

Free Speech: Government Information

Government may limit its dissemination of information to protect privacy, no duty to make proceedings and papers open to the public, except right to attend trials and pretrial proceedings

Takings Clause

Government may take private property for public use if it provides just compensation Possessory vs. Regulatory

Takings Clause: Regulatory

Government regulation is a taking IF it leaves no reasonable economically viable use of the property (NOT simply decreasing value of property)

Search and Seizure: actor

Governmental conduct: public paid (on or off duty) and any private individual acting at direction of police NOT privately paid police UNLESS deputized with power to arrecr

Free Speech: Advertising

Govt regulation MUST: (i) Directly advance, (ii) a substantial govt int (iii) AND narrowly tailored

Wills: No Contest Clause

If any beneficiary contests the will or ay provision they forfeit their every benefit UNLESS - Contest is brought in good faith AND with probable cause - Most likely: if they lose, they get nothing

Trusts: Cy Pres Doctrine

If charitable purpose chosen by S is impracticable, unlawful, impossible to achieve or wasteful, the court may select an alternative under doctrine of cy pres (means: as near as possible) by ascertaining S's primary purpose

Duty: Common Carrier or Innkeeper

High degree of care, liable for slight negligence

Contracts: Cure

Legal right to fix error: prior to expiration of time for performance UCC: for reasonable amount of time after time of performance; seller's reasonable belief that delivery would be acceptable Land sales: reasonable unless time is of the essence

Supreme Court: Jurisdiction

Original and exclusive juris over all suits between state governments General juris: usually only once there has been a final decision by: - Highest state court (only if reversal on federal law grounds will change the result) - US Court of Appeals - Three-Judge federal district court

Title: Wild Deed

Original deed not recorded so secondary deed is not able to give record notice of its existence (S-B (not recorded), B-C (recorded): B-C deed is a wild deed

Business torts: Defenses

Level of interference not burdensome enough 3rd party never breached Information given to 3rd was true/honest advice within scope of a request Competitor

A's Duties to P: Remedies

P may recover for losses caused by breach, disgorge profits made by A

Agent Contracts: Actual Expressed

P uses words to express authority to enter into a contract - can be oral UNLESS Equal Dignities Doctrine

Assumption of Risk

P voluntarily and knowingly assumed specific risk Express: unless intentional harm or extreme negligence (reckless, wanton or gross disregard) Implied : P appreciated risk but freely/voluntarily assumed risk

Agent Contracts: Apparent Authority

P's manifestation to a 3rd party that cloaks A with the appearance of authority and 3rd person reasonably relies on A's apparent authority

Supremacy Clause

Preemption: Federal law supersedes any state law where its directly on point. (1) Express Preemption: Fed Statute explicitly states that fed law is exclusive in a field (2) Implied Preemption: (i) compliance with both state and fed law is impossible; (ii) state law impedes fed objective; (iii) fed reg is so pervasive that there is not room for state law to add to it - EXCEPTIONS: (1) POLICE POWER: 10th A: state law can regulate HEALTH, SAFETY AND WELFARE of their citizens (NO federal police power, only state)

Trial Rights: Jury Selection

Preemptory challenges: strike for ANY reason EXCEPT race or gender (3 per side); can strike "for cause" unlimited amount

Title Covenants: Present

Present covenants (breached at moment of delivery of deed, not to future grantees) (1) Covenant of Seisin: a promise that G owns the estate purported to be conveyed (2) Covenant of Right to Convey: A promise that G has the legal right to convey title (i.e. not a minor or trustee lacking authority) (3) Covenant Against Encumbrances: Promise that there are no encumbrances of the title other than those expressly listed in the deed

Future Interest: grantor

Present interest with future possession: 1. Reversion: future interest arises in grantor who transfers an estate of lesser quantum than started with, other than fee simple determinable or fee simple subject to cond subsequent 2. Possibility of Reverter: accompanies only the fee simple determinable 3. Right of Entry: power of termination, accompanies only fee simple subject to cond subsequent

Removal of Executive Officers

President: may fire ANY executive branch officer UNLESS prohibited by statute Congress: may limit/constrain the Pres.'s ability to remove branch officials BUT may NOT directly remove executive appointed officers from office (except by impeachment)

Negligence Per Se

Presumption of negligence when violate statute enacted to protect a class of persons, including P, against the type of harm which P suffered test: was statute designed to protect P's class? did P suffer from type of injury meant to protect?

Wills: Mistake/Ambiguity

Presumption that T read will and was competent so mean what he said - Test for extrinsic evidence (I) Ambiguity: CAN use to clarify - Latent ambiguity: ONLY when terms of will are applied to T's prop or designated beneficiaries (Description fits two or more persons or things (I.e. Claire but 2 Claire's) OR Nothing exactly fits that description but come close(I.e. to my nephew Billy Joe: but two nephews Bill and Joe)) (II) Mistake: CANNOT use to fix - Patent Ambiguity: appears on face of will ("Leave 4/3 of the estate" or "everything I own to A and everything else to B"): NO extrinsic evidence, portion w ambiguity just thrown out (UPC: may conform to intent w/ clear and convincing ev.) - If fails: goes to residuary or intestacy

Contracts: Incapacity Mental

Presumption: adult has contractual capacity- requires expert to refute (burden on incapacitated) - Effects: K is voidable by incapacitated (can ratify after returning to capacity) - Test: state of mind and reasonable expectation: - Cognitive test (old): At time of K, person had such severe mental illness that he/she was unable to understand the nature and consequence of the transaction - Volitional test (modern): party may have understood transaction but lacked capacity to understand the effects rationally - Court may grant relief as justice requires: in whole or in part depending on circumstances and equity

Vicarious Liability: sub-agent/borrowed agent

Principal liable ONLY if there is assent, benefit and control between P and Sub/borrowed agent

Vicarious Liability: Agent

Principal liable if there is: Assent, Benefit (furthered business), Control (ABC) Control: P has power to supervise the manner of A's performance

Agent Contracts

Principal will be responsible for contracts authorized by agent IF P authorized agent to enter into the contract (authorized agents not generally personally liable)

Corporation: Prior to Formation

Prior to formation: ALL persons purporting to act as or on behalf of a corp., knowing there is no incorporation, are jointly and severally liable for ALL liabilities created while doing so (essentially a default partnership)

Director's Duty of Loyalty*****

MUST act in good faith w/ reasonable belie that what they do is in best int of the corp - were Ds greedy? Put their own financial interests ahead of the corp and its SHs? - BJR does NOT apply (NEVER applies when there's a conflict of int) - Burden on Director to show that (i) deal was fair to the corp when entered OR (ii) D's interest and the relevant facts were disclosed or known and the deal was approved by EITHER (a) Majority of disinterested Ds OR (b) majority of disinterested SHs

Joinder: Non-party/Absentee

MUST be FORCED to join IF they are necessary (indispensable) (1) w/o them court cannot accord complete relief among the existing parties (concern about multiple suits) (2) A's interest may be harmed if he is not joined***** (failure to join will impair/impede his ability to protect his interests) (3) A claims an interest that subjects a party (usually D) to risk of multiple obligations (4) NEVER EVER joint tortfeasors (can ALWAYS sue one and not the other)

Beneficiary

MUST be a Definite/Ascertainable Beneficiary - Can be Charitable, Class (must be identified in instrument, cannot be too broad ("my best friends") but court will try to ascertain intent

Priority: Consumer to Consumer Sales (Garage Sale Rule)

MUST be consumer goods in hands of BOTH seller and buyer - Consumer takes free of sec int EVEN though it's perfected IF buys in good faith for value AND for personal, family, household purposes - UNLESS prior to purchase SP filed a financing statement

False Light: offensive

MUST be highly offensive: NOT defamatory JUST offensive

Consent

MUST be voluntary - Police saying they have a warrant negates consent - 3rd Party consent: where two or more people have (or appear to have) equal right to use a piece of property, either can consent to warrantless search BUT if both are present the contesting one controls

Death Penalty

MUST give D a chance to present ALL mitigating facts and circumstances: state may NOT, by statute, limit the mitigating factors - NO automatic category for imposition of death (only JURY not judge or statute can determine aggravating factors justifying imposition of the death penalty)

Class Actions: *******Requirements

MUST meet ALL 4 (1) Numerosity: (so many people that joinder off all is impracticable- no magic number) (2) Commonality*** ( some issue in common to ALL class members SO that resolution will generate answers for ALL (common ques. of law/fact) (3) Typicality: Rep parties MUST have claims/defenses that are typical of the entire class (4) Adequacy: Rep parties will fairly AND adequately represent class' interest AND One of 3 class: (1) Prejudice (rare): class tx necessary to avoid harm either to class members or to the non-class party (claimants against one fund might deplete leaving some w/o remedy); NO right to opt out (2) Injunctive or Declaratory Relief (NOT damages): D treated the class alike; NO right to opt out (3) Damages******: Common questions PREDOMINATE the individual AND class action is the SUPERIOR method to dispose of the action (Mass Torts: maybe a million little claims but all centered on one giant claim and hearing all of them together is better than each little one alone); court must notify class member they are in class (individual notice)

Standing: General Grievances

MUST show that P has a personal stake or is imminent danger of sustaining a direct injury as a result of D's action - No taxpayer concerned with having the government follow the law - None when asserted harm is shared in substantially equal measure by all or a large class of citizens - Exception: Taxpayer challenging government act under the taxing and spending power and that legislation allegedly violates the Establishment Clause

Appeals: Harmless Error

MUST show that court's error affected party's substantial right AND likely caused prejudice

Arson

Malice Crime Malicious, burning, of the dwelling, of another - Mens: No specific intent required- reckless disregard of an obvious risk that the structure would burn is sufficient - Burning: charring (not smoke damage or scorching) Common law: has to be dwelling/house (not barn/commercial bldg.)

Contracts: Offer

Manifestation, through words or conduct, of intent/willingness, to be bound (promise or commitment to do/refrain from doing something in the future) CANNOT be assigned - Watch for: Land sales (price and description required); Vague/ambiguous material terms - A bid is an offer

Choice of Law: Family Law

Marriage: where marriage was performed UNLESS marriage would violate the strong public policy of a state, then it may not be recognized even if valid where performed - If void where performed, then void everywhere unless void on some technicality AND it would have complied with forum rules

Charitable Trust

May be created for: - MUST have indefinite beneficiaries (may be limited BUT may NOT benefit a few individuals who S wishes to aid personally); court may select one or more charitable purposes or beneficiaries as long as consistent w ascertainable intention - MAY be perpetual (No: RAP) - Cy Pres Doctrine applies - MUST have purpose to benefit public (Relief of poverty, advancement of education, religion, science, promotion of health, government or municipal purposes, or to benefit the community) - Terms or charitable trust MUST indicate a particular charitable purpose or beneficiary - Enforcement: suit can be brought by settlor, a qualified beneficiary or state's AG

Joinder: Defendants

May be joined IF: (A) right to relief asserted against them arises out of same T/O AND (B) raise at lest one common question

Defense of others

May defend another, in the same manner, and under the same conditions, as the threatened person could use - Reasonable but mistaken belief

Scope of Discovery

May discover ANYTHING relevant to a claim or defense that is reasonably calculated to lead to discovery of admissible evidence (broad: does not have to be admissible) - Limitations: (i) Privileged communication (ii) Atty work product: unless priv is waived (disclosure of priv info/failing to assert)

Joinder: Plaintiffs

May join as P IF: (A) Assert any right to relief jointly, severally or arising from same T/O AND (B) Raises at least one common question

Free Speech: Public and Designated Public Forums

Property traditionally held open for public discourse (i.e. sidewalks) (1) Content based restrictions (strict scrutiny) (2) Not content based restrictions (subject matter and viewpoint neutral) Regulations of time, place and manner: (i) further sig govt int (ii) leave open adequate alternative channels of communication AND (iii) narrowly tailored (not least restrictive)

Prosecutor's Duty: Exculpatory Evidence

Prosecutor has a Duty to disclose all Exculpatory Evidence; if fails to meet duty (willful or inadvertent) violates due process and may be grounds for reversal of conviction IF - Evidence is favorable to D - AND prejudice has resulted (reasonable probability that the result would have been different with info)

Privs. and Immunities Clause, Article IV

Protects fundamental rights (those involving (i) important commercial activities and (ii) civil liberties) State law MAY be valid if it has a SUBSTANTIAL JUSTIFICATION for the different treatment (MUST show: non-residents are either the cause or are part of the problem state is attempting to solve AND LEAST RESTRICTIVE means) ALWAYS analyze along with Dormant Commerce Clause (diff tests, possibly diff results) States may NOT use their tax system to help/prefer in-state businesses - Note: Corps. and aliens are not protected by this (they're protection comes from 14th A Eq Prot and Due Process AND the Commerce Clause)

Agent Contracts: Revocation of Authority

Revoked by a unilateral act of P or A, death of P, incapacity of P (unless A has durable power of attorney)

Assignment of Rights: Limitations

Right can be assigned UNLESS - Would cause substantial hardship to obligor - Is forbidden by statute - Barred by K provision (validly precluded in K term): Prohibition: bars right to assign; invalidation: causes breach in K and no rights assigned

Default

Right of SP to proceed against collateral - Determined by terms of agreement (generally, failure to pay) - Methods (i) Self-help repossession (ii) Retention of collateral (iii) Resale of Collateral

Specific Performance

Right of a party to demand that D be ordered in judgment to perform K - Not for services (may be ordered money in lieu of services)

Mortgage: Exoneration

Right of surety to compel mortgagee to proceed against primarily liable person first

Trial Rights: Judge

Right to Unbiased Judge (no financial interest in outcome of case or actual malice against D)

Right to Bear Arms

Right to have weapons for self-defense, no specific level of scrutiny

Miranda: Invocation

Right to remain silent/Right to Counsel: - Cannot invoke by remaining silent (MUST be unambiguous/unequivocal statement) - Once invoked MUST stop questioning UNLESS given an attorney OR accused intitiates further questioning Sufficient for 14 days

Perfection

Rights btwn the SP and 3rd party creditors - Requires: Attachment + 1/5 methods

Doctrine of Worthier Title

Rule against remainder in heirs of the grantor; if instrument creates a life estate in A and remainder in heirs of O, the future interest becomes a reversion (doctrine can be expressly waived in title)

Rule in Shelly's Case

Rule against remainders in heirs of the grantee (i) ONLY applies to remainders, not executory interests (ii) if one instrument creates a life estate in A and a remainder in the heirs of A the future instrument becomes a remainder in A - Abolished: (now: O to A for life, then to A's heirs" A has life estate, A's heirs (unknown) have a contingent remainder, O has a reversion)

Supreme Court: Congressional Limits

SC has appellate jurisdiction, both as to law and fact, with such exception and under such regulations as the Congress shall make Congress CANNOT deny SC jurisdiction on cases that involve Constitutional claims (violates separation of powers) Congress CAN limit the avenues by which a case gets to the SC but cannot eliminate them

Partnership: types of Property

Specific: land, leases, equipment Share of Management: Owned only by P may not transfer to some 3rd party Share Profits and Surplus: Partners own share is personal property of partner, may be freely transferred by partner Consider: whose money was used to purchase? P's then P prop; Partner then Partner's

Zoning

Pursuant to its police powers, government may enact statutes to reasonably control land use - Variance: to avoid zoning (MUST show: undue hardship, variance will NOT create a negative impact on public/neighborhood) - Non-conforming use: CANNOT be eliminated all at once unless paid just compensation - Exactions: Amenities gov't seeks in exchange for granting permission to build (MUST be reasonably related in nature and scope to the impact of proposed development)

Contracts: Essential Terms

Q-TPPPS 1. Quantity 2. Time (optional) 3. Parties 4. Price (gap fillers possible) 5. Place (optional) 6. Subject matter

Appeals: Re-examination

Questions of Fact: (i) Jury: Banned by re-examination clause of Constitution (ii) Judge: clearly erroneous standard (reviewing court, on entire evidence, has firm and definite conviction that a mistake was made)

Tactics to Confront Damaging Evidence

REFEREE 1. Exclude through specialized rule 2. Exclude by demonstrating claim is unfair, confusing or undue delay OFFENSIVE 3. Complete the story (add/eliminate) 4. Rebut the ev. 5. Introduce expert testimony about the ev. 6. Clarify ambiguous testimony DEFENSIVE 7. Show impairment of perception or recollection 8. Demonstrate inconsistencies 9. Show bias 10. Attack the W's character for truthfulness

Contracts: Rejection of Goods

Valid contract but potential breach: if seller does not meet perfect tender rule, buyer can either: retain and sue for damages OR reject "all or any of a commercial unit" and sue for damages - Buyer duty to: take reasonable care of rejected goods, not continue to use rejected goods; can sell after reasonable period of time BUT ONLY entitled to reimbursement out of proceeds for reasonable expenses incurred in the inspection, receipt, transportation, care and custody of the goods

Choice of Law: Divorce

Valid divorce requires: Proper SMJ over ONE spouse (spouse domiciled in state rendering divorce) - 3 Types: (1) Ex-parte: ONE spouse legally domiciled in state where granted; (2) Bi-Lateral Divorce: One spouse validly domiciled AND both spouses subject to PJ (i.e. one lives there, the other got served there) ; (3) Consent Divorce: Both want out and go somewhere together to get divorced (I.e. quickie divorce) NOT valid if no domicile of either party

Property: Notice

(1) Actual: knowledge of prior interest (2) Constructive: (i) Inquiry Notice: recorded instrument prompts title searcher to make further inquiries (required to conduct additional investigation) (ii) Record Notice: Information could have been learned by examining public land records or making an appropriate investigation

Divorce: Custody

(1) Agreement: Can be agreed to in separation agreement (MUST be essentially fair, w full disclosure of assets) ALWAYS subj to judicial oversight - Modification: (i) Merged into divorce decree: can be modified upon same rules that govern modification of decree, agreement must expressly merge (ii) Incorporated by reference (separate from divorce decree): NOT modifiable UNLESS it so states or BIC (2) Court Ordered: - Based on BIC; modified on BIC - Types (i) Legal: parent's authority to make major decisions on behalf of the child (including: religion, education, medical tx); can awarded sole or joint; (ii) Physical: right to have child reside with them AND obligation to provide for routine daily care and control of the child (sole or joint) - Joint vs. Sole: consider geographic locations, relationship btwn parents - Non-custodian: Almost ALWAYS gets visitation - Grandparent's rights: MUST show failure to have visitation would cause ACTUAL detriment to child

Financing Statement: Requirements

(1) D's name (2) Description of Collateral (reasonably identifies: MORE broad that for sec. agreement; sufficient "all inventory" or "all assets") (3) SP's name (4) Authentication (no need if Ipso Facto)

Corp. Decision Making: BoD

- Create Articles of Incorporation - Appoint CEO and other Corp. Officers - Determine general corp. policies - Manage corp. affairs

Collateral: Semi-intangible and Tangible Property**********

(1) Instruments: negotiable instrument and any other writing which evidence a right to the payment of a monetary obligation AND which is in ordinary course of business transferred by delivery w any necessary indorsement or assignment (NOT investment property) (promissory notes, checks, drafts) (2) Chattel Paper: Promissory Note + Sec. Agreement: a record(s) which evidences both a monetary obligation AND a sec interest in or a lease of specific goods (record: information that is stored in either a tangible (paper) or intangible (electronic) medium) (3) Accounts: a right to payment for (not evidenced by instrument or chattel paper, not a bank account, not loan of money): Goods, services rendered, real property, insurance, policy, secondary obligation incurred/to be incurred, energy provided, use/hire of a vessel, arising out of a credit card, lottery winnings (4) Deposit Accounts: An account maintained with a bank (ONLY non-consumer) (5) Commercial Tort Claims (lousy): claim arising in a tort where claimant is an organization OR an individual AND claim arose in their business or profession AND does not include damages for personal injury or death (i.e. intentional Interference w Contractual Relationship) (6) General Intangibles: Everything else; where payment is intangible; Usually intellectual property (software, patent, trademark right, copyright, goodwill)

Corporations: Dissolution

(1) Involuntary: Judicial Dissolution: SHs petition court because of (i) D abuse, waste of asserts, misconduct (ii) D deadlock that harms corp. (iii) SHs have failed to fill a vacant board position at 2 consecutive meetings - Court may order a buy out of complaining SHs instead - Creditor can petition because Corp. is insolvent AND (i) has an unsatisfied judgmnet OR (ii) corp. admits the debt in writing (2) Voluntary: by vote of BoD and then vote of SHs (requires majority of all shares)

Choice of Law: Defenses

(1) Law Chosen is Procedural NOT Substantive: (i) Procedural: Burden of Proof; SOL (ii) Substantive: contributory/comparative negligence; SOF, Parol Evidence Rule (2) Law is Against Public Policy of Forum State: MUST be REALLY offensive (never) (3) Law is Penal Law: only criminal offenses against public

Closing: Delivery

(1) Manner: grantor physically transfers to grantee (mail, agent, messenger; escrow once conditions are met) (2) Legal Standard: delivery itself does NOT transfer deed (requires intent) cannot be merely symbolic (MUST carry ALL force and consequence of outright ownership at the time of delivery) (3) Name of Grantee: delivery is inoperative and null without new execution or acknowledgement by grantor with expressed or implied authority to insert name (4) Condition: if transferred to grantee with an oral condition: condition is VOID (delivery makes complete)

Full Faith & Credit: Defenses

(1) Penal Judgment: sister courts will NOT enforce judgment rendered for an offense against the public (criminal sanctions, civil fine; winner is gov't) (2) Extrinsic Fraud: fraud could not have been dealt with in earlier trial (ONLY example is bribing a judge) NOT intrinsic fraud (could have been dealt with in trial)

Perfection: Methods

(1) Possession of Collateral by SP: takes collateral pursuant to agreement (perfected at time of possession, continues only as long as possession continues, cannot take possession of intangibles, deposit accounts) (2) Automatic Perfection PMSI (3) Perfection by Control: (A) investment property (SP is able to have prop sold w/o further action from owner), (B) electronic chattel paper (system showing the xfer of int in chattel paper reliably establishes the SP as assignee), AND (C) Non-Consumer Deposit Accounts (i. bank where deposit account is maintained automatically has control; ii. SP is not bank BUT SP's name is on account (co-owner) OR iii. Agreement, in writing, w/ D and holding bank that SP can act on acct w/o any further consent by D) (4) Notation of Lien on Certificate of Title: ONLY way to perfect on automobile if (lending to purchaser): SP MUST note its lien on the cert of title (w/ gov't authorities) UNLESS D is holding autos as inventory (lending to dealer) must file financing statement (5) Filing a Financing Statement

Enforcement of Discovery

(1) Protective Order: request to court because (i) unreasonably cumulative or duplicative (ii) obtainable through other coursed (more convenient, less burdensome/expensive) (iii) burden/expense outweighs the benefit (2) Partial Violation: does not provide all requested; move for order compelling party to answer unanswered PLUS costs of bringing motion; IF FAILS it becomes a (3) Total Violation: party fails completely to attend deposition, respond to interrogatories, respond to request for production, comply with court order to produce - RAMBO sanctions: (i) establishment order (court establishes that facts are true) (ii) Strike pleadings of disobedient party (iii) disallow evidence from disobedient party (iv) dismiss P's case (if bad faith is shown) (v) enter default against D

Title Notice: Recording Acts

(1) Pure Race: 1st to record wins priority (REGARDLESS of whether BFP) (2) Notice: the last BFP has priority (3) Race-Notice: 1st BFP to record wins priority (4) PURCHASE MONEY MORTGAGE takes PRIORITY over all other mortgages REGARDLESS of recording statute (PMM must be recorded)

Corporate Voting: Methods

(1) Straight Voting: separate election for each seat, each SH casts votes according to # of shares (majority SH basically able to elect every board member) (2) Cumulative Voting: MUST require in articles; D's not elected by seat (one at large election) top vote getters are elected; SHs can cumulate their shares (multiply by # of Ds being elected) (3) Staggered: Only fraction of Board hired each year; can be straight or cumulative

Pleadings: Sanctions

(1) opposing party MUST first serve violating party a motion providing a 21 day safe harbor to fix error (2) court can raise sua sponte (issue order to show cause why sanctions should not be imposed- give party opp to be heard) - May be ordered against party for purpose of deterring repeated bad conduct (not punishing); need not be monetary (3) a judge may impose a range of sanctions including holding the party in contempt; striking of pleadings, and prohibiting the introduction of evidence against a party who FAILS to attend a pretrial conference. The imposition of a sanction should BEAR SOME RELATIONSHIP to the violation (4) On appeal, decision to impose reviewed on an "abuse of discretion" standard.

Wills: Simultaneous Death

120 hour rule - If die w/in 120 hours: presumed to have died first, neither inherits from the other - Burden of rebuttal: preponderance of the evidence

Hearsay Exception: Excited Utterance

(i) Statement concerning a startling event (ii) made while DT is still excited/under stress of the excitement caused by the evidence (iii) statement related to the event (close in time) - Consider: nature of event; closeness of time; visual clues (phrases, excitement oriented verbs, exclamation points: "good heavens," "DT shouted, screamed, exclaimed, excitedly" ) - Note: use if dying declaration is not viable option due to "unavailability": backup

Criminal: Causation

Actual Cause and Proximate Cause

Prescriptive Easement

(COAH) Continuous use; Open and notorious, Actual, Hostile to servient (permission defeats acquisition creates license)

Easement: Termination

(END CRAMP) - Estoppel: D is estopped from enforcing because S materially changes position in reasonable reliance on easement holder's assurances that the easement will not be enforced - Necessity- ends unless easement has been reduced to writing - Destruction: other than through willful conduct of S - Condemnation of S estate: by eminent domain - Release: written and given by easement holder S owner - Abandonment: D must demonstrate thru PHYSICAL ACTION an intent to never use the easement again (more than non-use or mere words) - Merger doctrine: title to both properties become vested in same person - Prescription: S owner manifests an intent to extinguish by (COAH) Continuous interference, Open and notorious, Actual, Hostile to easement holder

Erie Doctrine

(Rare/Easy) - Fed Div matter MUST apply state substantive law UNLESS (1) there is any fed law on point that directly conflicts with state law (const., statute, FRCP, FRE) then apply fed law (2) Always be substantive law: ((i) Elements of claim/defense; (ii) SOL including tolling, (iii) Conflict of Law Rules)

Constructive Eviction

(SING): Substantial Interference (by L's actions or failures) Notice (T must notify L of the problem, L must fail to meaningfully act Goodbye (T must vacate within a reasonable time after L fails to fix)

Jurisdiction: Custody

(UCCJEA) Valid jurisdiction lies ONLY where child's PJ (child's home state) - State where child has resided w/ parent for 6 consecutive months immediately proceeding the start of the case (or since birth) - Once entered, THAT court has continuing exclusive jurisdiction CEJ of the matter (as long as EITHER: the child OR one parent still lives in that state OR parties give written consent (never))

Claim Preclusion:

(formerly Res Judicata) Bars claim from re-litigation - Narrow View: Parties and Claims Identical (Barred from second action where the parties and claims are identical (identical evidence necessary to sustain both verdicts (common core of operative facts); events are part of the same T/O or series of T/Os)) - Broader View: Transaction Theory: (Matters related in time, space, origin and motivation: adjudication of claims to a final judgment on merits, bars ALL subsequent claims to a final judgment on same OR transactionally related claims BTWN same OR parties in privity with them) (includes: claims AND defenses that could have been brought up in original; parties OR non-parties w/ sufficient privity (i.e. joint ownership or control of prior litigation); Requires: Final judgment on merits (jury trial; judgment as matter of law; summary judgment; dismissal for failure to prosecute) - Not Precluded: claims NOT accrued at time of earlier suit; substantial claims when court in earlier case lacked SMJ (unless P chose court); substantial claims belonging to another party

Express Trusts: Creation

(i) Creator (with capacity), (ii) with a present intent to create a trust (immediately), (iii) by present disposition of specific property then owned by creator (iv) to a definite beneficiary, (v) who is not the sole trustee and the sole beneficiary, (vi) with a valid trust purpose Methods: (i) Testamentary Trust, (ii) Inter Vivos, (iii) Self Declaration

Contesting a Will: Lack of Testamentary Capacity

(i) Did T understand the nature of the act he was doing? (ii) Did T know the nature and character of his property? (iii) Did T know the natural objects of his bounty? (iv) Did T understand the disposition he wished to make?

Lease: Estate for Years

(i) Lease which continues for a fixed period of time (2 days or 50 years) (ii) no notice of termination needed (self terminates at agreed upon time) (iii) MUST be in writing to be enforceable

Tenancy by Entirety

(i) ONLY between ALREADY married partners (ii) neither spouse can sever acting unilaterally (creditors of only spouse cannot touch it, cannot convey unilateral transfer) - 5 UNITIES (PT-TIP): Time (vested at same time); Title (acquired by same instrument) Interest (same type and duration) Possession (identical rights of enjoyment) Person (man and wife: one person) - Creation ONLY by deed or will NOT by descent

Future Interest: Vested

(i) ONLY remainders can be vested, (ii) alienable and deviseable, (iii) has a right against waste (iv) not subject to RAP (v) X is an ascertained person (born and accessible) AND (vi) no condition other than the expiration of the preceding estate must be met before X's interest becomes possessory (O to A for life then to X (who is alive) and his heirs) - usually after a Life Estate or Estate for Years - Vested Remainder Subject to Open: O to A for life, then to the children of A and their heirs (class remains open- children may still be born)

Implied Warrant of Habitability

(i) ONLY residential leases (ii) L must uphold a legal standard (statutory OR fit for human habitation- low standard for L) (iii) Requires: notice of defect (written or oral); reasonable time to repair; existence of defect limiting habitability at time of withholding rent (iv) damages: (MR3) Move out: (optional unlike constructive eviction) Repair and deduct; Reduce rent; Remain (pay and affirmatively seek money damages) (vi) Liability CANNOT be waived (vii) doctrine of retaliatory eviction

Tenancy in Common

(i) Two or more (ii) NO right of survivorship (iii) each interest is divisible, descendible and alienable (iii) preferred default, (iv) equal right to possession of the whole (v) each can dispose of their portion or any part thereof through deed or will (vi) destruction: merger (title vests in one party) (vii) no fiduciary relationship

Joint Tenancy

(i) Two or more (ii) right of survivorship (clearly stated by grantor) (iii) NOT deviseable or descendible - 4 UNITIES (T-TIP): TIME (vested at same time); TITLE (acquired by same instrument) INTEREST (same type and duration) POSSESSION (identical rights of enjoyment) - Destruction (SPAM): (I) SALE (destroyed only as to party who sold- grantee holds tenancy in common, does not require others permission or knowledge); a CONTRACT TO CONVEY will sever a joint tenancy even BEFORE title is transferred (II) PARTITION (final decree for partition at request of any tenant) (III) AGREEMENT by all tenants; (IV) MORTGAGE/lien: (a) Title Theory (minority): conveys title and severs JT (b) Lien Theory (majority): itself does not sever, ONLY when foreclosed on and prop sold

Future Interest: Contingent

(i) created in unascertained person or subject to a condition (ii) always a reversion in transferor, (iii) no right against waste, (iv) O to A for life, then to A's children who reach 21 and their heirs (A has two children B19 and C20- B and C cont. remainders, O: reversion) (v) AUTOMATICALLY destroyed UNLESS it vests at or before the expiration of the preceding estate (iv) 2 ways destroyed: (a) Natural Expiration of preceding estate (O to A for life then to B's wife (A dies, B is not married) reversion to O) (b) Merger - Alternative Contingent: O to A for life, then to B if B marries C, but if not then to D and his heirs (B and C have Alternative Cont.) there is always reversion

Dissolution Winding Up

(i) gather all assets; (ii) convert to cash (iii) pay creditors (iv) distribute remainder to SHs (pro-rata by share unless there is a liquidation preference)

Implied Easement by Necessity

(i) grantor conveys part of his land (severance of title in common ownership (ii) D has NO way out except over part of S's land (iii) Terminated when necessity terminates (unless reduced to express writing) (iv) location: determined by S as long as reasonably convenient

Implied Easement by Prior Existing Use: Creation

(i) prior division of single tract (ii) Apparent and Continuous use exists on S (could discover upon reasonable inspection or reasonable person would have notice of existence) (iii) Reasonably necessary for the enjoyment of the D's part (convenient not necessary) (iv) court determines parties' intent to continue after division

Most Significant Relationship Approach (MSRA)

(majority) Approach to choice of law: - Apply the law w/ most significant relationship to the outcome of the litigation - 5 Steps: (1) determine the substantive area of law in the problem (2) find and discuss the connecting facts(facts connecting the various states t the matter: depend on area of law) (3) Note and discuss the policy principles (2: interests of forum; interests of the other state(s) involved in problem) (4) Choose law w/ most significant relationship to the outcome based on conclusions (5) state the results of applying chosen law

Impeachment: Inquiry About Bad Acts

(no conviction) If they reflect adversely on W's character for truthfulness: - ONLY permissible thru confrontation on cross (NO extrinsic ev. IF W denies can question further but that's it)(have to be impeached before can rehabilitate) - Cross-examiner MUST have good faith basis for inquiry - Limited to act of truthfulness itself (NOT its consequences) Tip: MAY be relevant to something separate from truthfulness MAY be relevant for some other purpose (i.e. bias/reputation)

Priority: SP vs. Statutory Lien Creditor or Construction mortgage

(think car mechanic/car) - Stat Lien and Construction Mortgage beat perfected int - Construction Mortgage ALWAYS takes priority over subsequent PMSI on fixtures

Director's Duty of Loyalty*****: Triggered

- Arises when: (i) Competing ventures: D's action competes w/ company (remedy: constructive trust on profits) OR (ii) Expectancy *******(D takes "Corp. Opportunity" for self); test (found on co. time or w/ co. resources; something the co. has an interest/expectancy in); CANNOT usurp a corp. opportunity UNTIL (i) tell the board about it, AND (ii) wait for the board to reject the opportunity; corps. inability to afford opp is NOT a defense (remedy: D must sell it to corp. at his cost; if already sold then must give corp. profits) (iii) D sets own compensation: must be reasonable and in good faith (if excessive: is a waste of corp. resources and breach of duty)

Conversion: Remedies

Return of chattel: P not required to take back Forced Purchase/Sale: D required to pay full market value at the time of conversion

Causation: Acceleration

Actual Cause if a later, nonlethal injury accelerates the death, 2nd actor is also liable UNLESS - Injury merely adds to victims pain (does not actually accelerate) - I.e. got shot then later stabbed (but not if just stabbed in leg-not deadly)

Strict Products Liability: Causation

Actual and Proximate (foreseeability of use: obvious to manufacturer, product used by intended user)

Corporation: Creation

- Articles of Incorporation: (1) Necessary papers (effective upon filing, superior to bylaws) (2) Corp. does NOT exist until filed (properly executed with appropriate agency) - Bylaws: (1) Internal governing document (practical necessity, not required) (2) Adopted by BoD (SHs can amend/repeal (3) May contact ANY provision not directly inconsistent w/ articles (conflict: articles always win) De Jure Corp: satisfied legal requirements to come into existence: "Real Corp."

Assignment of Rights: Enforcement

- Assignee can recover from Obligor - Assignor for consideration CANNOT recover from Obligor - Defense: same as against Assignee

Contracts: Undue Influence

Arises from special relationships: 1. Undue susceptibility to pressure AND excessive pressure by other (watch for fiduciary relationship) 2. Inquiry: to what extent was the transaction induced by domination of mind/emotions?

Trial Rights: Jury

- Attaches anytime D is tried for an offense which max auth'd sentence EXCEEDS 6 months - Min of 6 jurors (must be unanimous w/ 6); NO Constitutional right to unanimous 12 person jury verdict (most states do) - Right to have jury pool reflect a fair representation of the community - NO right to have impaneled jury reflect a fair cross section of the community

Right to Counsel: 5th

Arises when suspect invokes Miranda right AND requests an attorney - NOT offense specific (applies to entire process of custodial interrogation)

Contracts: 7 gen rules

Armadillos From Texas Play Rap, Eating Tacos 1. Applicable Law 2. Formation of contracts 3. Terms of Contract 4. Performance 5. Remedies for unexcused performance 6. Excuse on nonperformance 7. Third-party problems

Mootness

Actual controversy is on-going and has not ended since the filing of the complaint UNLESS: capable of repetition but evading review, collateral consequences continue despite termination of primary injury (abortion) OR Voluntary cessation of activity by D BUT possibility that D can re initiate freely in future

Partnership: Formation

Two or more people owning a business, no formal legal steps, no action required (no agreement), default business structure

Choice of Law: Divorce Procedure****

- Burden: Attacker bears burden and con introduce any relevant info 9even if comes into existence after divorce granted) - Party********: ANY interested party who is NOT estopped CAN attack a divorce decree for lack of SMJ (strangers cannot attack) - P estopped IF: attacker is subject to PJ in earlier proceeding (bi-lateral spouse cannot later attack); attacker in earlier proceeding was not subj to PJ BUT played a meaningful role in granting the divorce (i.e. helped spouse move there); persons in privity with a party to the divorce (includes children); a spouse who has remarried in reliance on the earlier divorce

Minimum Amount in Controversy

- Claim considered on its face UNLESS it is w/o merit (NOT lessened/set-off by counterclaim) - Aggregation: (2 or more claims to meet amount) ONLY when (1P and 1D and 2 issues is over) OR (1P and 3Ds in Joint Claim: total amount is over) NOT (1P for $30k and 2P for $50k against 1D- CANNOT add together Ps to aggregate amount) - Injunction: based on amount of injunction (the cost to do OR not do something: consider both (i.e. injunction to tear down wall: how much prop loss to P, how much cost to tear down to D?))

Improper Performance

- Common law: party makes material breach then other party is released from obligation (NOT if there has been substantial performance-more than half) - Material Breach of Divisible Contract Corollary: breaching party can be recover for divisible part even if there is a material breach (paints 2 of 10 contracted houses) - UCC: perfect tender: not perfect: liable for breach

Contracts: Duress

- 2 Elements: 1. One party must commit a wrongful/illegal act AND 2. Wrongful act must preclude other party from exercising free will - 2 types 1. Traditional: forcing party under fear of threat (violent, substantially certain to occur- defense and ground for rescission) 2. Economic: One party uses economic threats to overcome party's will (will severely impact property/finances AND no adequate means available to prevent threatened loss)

Trial

- 7th A right to jury: ONLY in fed court, ONLY in actions in law (not equity) - Jury: must request jury in writing (no later than 14 days after service of last pleadings raising jury triable issues) - Voir Dire: each side may strike (3 preemptory (not for race or gender) and no limit on number stricken "for cause")

Venue: Transfer

- Any fed court MAY transfer to another fed court ONLY where case could have been filed originally (PJ over the D) - Can transfer w/o PJ ONLY if ALL parties consent AND court finds good cause for xfer - If original venue is PROPER court may xfer at its discretion ("this court is good but that court is better") - Other court is center of gravity (Public: what law applies, local controversies, what locale should be burdened; Private: convenience (where are witnesses, evidence, everything/body)) - If original venue is IMPROPER court can xfer instead of dismiss BUT must do one (only to court where original claim could have been brought that had original SMJ and PJ)

Commerce Clause

- Congress has plenary and exclusive power to regulate interstate commerce and commerce with foreign nations (persons/things that cross state lines in commerce) - Affectation Doctrine: Congress may regulate any activity which has a "substnatial enconomic effect" on interstate commerce

Necessary and Proper Clause

- Does NOT STAND ALONE (not an independent source of power) vehicle that carries into effect, some other law (i.e. can coin money) - Congress has the power to do things necessary and proper TO CARRY OUT their enumerated powers (ONLY if not prohibited by the Constitution)

Duress v. Necessity

- Duress: human force - Necessity: force of nature

Will: Witnesses

- Generally considered competent - (Majority) No interested party - Location: (minority) Scope of Vision: could see each other sign; (majority) Conscious Presence Test (conscious of what each other was doing and where each other is)

Free Exercise: Burden

- Incidental: Rational review - Purposeful/Targeting (impedes religious observance, invidious discrimination against religions): Strict - Sect Preference: Strict

Pleadings***************

- Lawyer, pro se, party: certifying that to the best of their knowledge and belief, after reasonable inquiry: (i) the paper is nt for an improper purpose (ii) the legal contentions are warranted by law (or non-frivolous argument for law change) AND (iii) the factual contentions and denials of factual contentions have evidentiary support (or likely to after further investigation)

Double Jeopardy: Exceptions

- Lesser offenses: Can be tried for both Battery and Murder (if V later dies) - Mistrial because: Jury unable to agree upon verdict OR manifest necessity (medical emergency) - Retrial after successful appeal (UNLESS overturned for lack of sufficient evidence) BUT cannot be retried for more serious offense than 1st trial - Breach of an agreed upon plea bargain by D (D breaches then plea can be withdrawn and D tried)

Corporation: Owners/SHs*******

- Liability: Not personally liable for debt of corp.; risk only amount paid for stock; EXCEPTION; Pierce Corp. Veil - Types: (i) Majority: Own greater that 50% (50.00000000000001%); (ii) Minority: own less than 50% (iii) Principal SH: owns more than 10%

Wills: Revocation by 3rd

- MUST be done at T's direction AND in T's presence - If destroyed by 3rd but not revoked (does not meet above elements): must have formal court proceeding where proponents have burden of proving contents of lost will - If negligently done by Atty: can be liable in tort

Trusts: Creditor's Rights

- MUST give creditors personal notice

Property: License

- Mere privilege to enter land of another for a delineated purpose (i.e. ticket holders); revocable at ANY time (no entitlement to compensation); SOF does not apply; No interest in land

Character Evidence: Exceptions Criminal

- ONLY when D opens the door; OR - D MAY use to show PERTINENT TRAIT as part of defense may use ONLY reputation or opinion testimony NOT specific acts (unless D was aware of V's violent reputation or prior specific acts- show D's state of mind) MUST be traits that relate to the immediate case (i.e. if honesty case can't show D is brave/peaceful) or that D is generally law abiding BUT opens door and P my rebut - PROSECUTOR: can cross examine about D's character but must have a good-faith basis, NO extrinsic evidence (just "did you know?") and ONLY to impeach W's knowledge; can call Ws to contradict - Victim: D can use pertinent trait of V with reputation/opinion testimony

Character Evidence: Method for Introducing

- On direct: can question W about opinion or reputation of D's character (NOT about specific instances) - On cross: CAN ask about specific instances - NO extrinsic evidence - CAN bring specific evidence ON direct IF element of crime (defamation, custody, negligent entrustment, entrapment)

Priority: Special PMSI Rules*****

- PMSI in goods takes TOP priority IF: (1) Consumer Goods****: perfects automatically on attachment (value given; authentication of agreement; D has rights in collateral) (2) Equipment: 20 Day Rule: Have 20 days to file from date of possession or commencement of lease (earlier) (3) Inventory/Livestock (rare): PMSI perfected & PMSI SP sends authenticated notification to holder of conflicting int w/in 5 years before D receives possession - PMSI vs. Lien Creditor: 20 Day Rule - PMSI vs. PMSI: Seller financed takes first priority

Divorce: Alimony/Spousal Support

- Purpose: to ease transition from being half of partnership to being sole member of economy (maintain until can becomes self-sufficient) - Determining: court has nearly unfettered discretion (age/health, Separate prop of each (who needs more); education/earning capacity; custodian of minor children; duration of marriage; DO NOT CONSIDER fault) - Method of Pay Out: (i) permanent periodic payments (modifiable) (ii) lump sum (iii) Rehabilitative (some distinguished period to be brought back to whole) (iv) Reimbursement (for support received during marriage if spouse paid) - Termination: ALWAYS upon death of either or remarriage of recipient

Corporate Voting: SH

- Record SH Owner*******: Person who owns on record date is the ONLY one w/ legal right to vote at an annual or special meeting (if sells after record date: still has right to vote); Exception: treasury stock at record date (does not vote) - Record Date: fixed date before meeting, no more than 70, no less than 10 days before meeting - Notice: MUST give written notice to EVERY SH (SH can waive: express: in writing; implied: attend meeting w/o objection) - Proxies: Agent can vote on behalf of SH (requires: writing, signed by record SH, directed to secretary of corp., authorizing another to vote shares; ONLY good for 11 months); CAN revoke proxy at anytime UNLESS proxy coupled w/ an interest (proxy says its irrevocable AND proxy has some interest other than just voting (i.e. option to buy, pledge to buy)

Voting and Candidacy: Restrictions

- Regulations MUST be NECESSARY to promote a COMPELLING state interest - Reasonable, non-discriminatory regulations (i.e. laws to prevent fraud, reasonable residency requirements) apply because considered necessary to achieve compelling interest (i.e. ensuring that only bona fide residents vote) Right to be a Candidate: - State may require showing of reasonable support; AND impose filing fees BUT fee cannot preclude indigents - MAY allocate more public campaign funds to major parties than to minor parties

Choice of Law: Domicile of Choice

- Requires legal capacity: age of majority/competence - Test: physical presence in the state (even for a short time) AND Intent to remain there for the foreseeable future (indefinitely); once obtained kept until another is acquired - Conflict: actions speak louder than words

Amending Pleadings

- Right to Amend: (1) P has right ONCE w/in 21 days after D serves first R12 response (2) D has right to amend ONCE w/in 21 days of serving answer - After right to amend expires: Seek leave of court (request to amend): freely given (consider: delay, prejudice to parties, futility of amendment) - Variance: evidence at trial does not match what was pleaded (sues for breach of K but admits evidence of tort); P can move to amend complaint to conform to evidence (ensures pleadings match what is actually tried) IF D objects to evidence: may be inadmissible because "variance with pleadings"; cannot amend complaint - Relate Back: if concerns same T/O and SOL has run on claim, can bring in by amending complaint and it will be treated as being brought at original filing date (avoid issue of SOL)

Double Jeopardy

- Two crimes are not the same offense if each crime requires proof of an additional element the other does not - Lesser included offenses: Being put in jeopardy for greater offense bars retrial for any lesser offense (i.e. no larceny or assault if tried for robbery ) - Separate Sovereigns: DJ bars retrial for same offense from same sovereign NOT others (can be tried by both fed and state)

Doctrine of Constructive Adverse Possession

- When one possesses a portion of a disputed tract of land, his adverse possession is sufficient to give him title to the ENTIRE tract of land, SO LONG as there is a significant relationship between the portion of the tract actually possessed and the remainder of land - Requires: Color of Title (e.g., a defective deed) AND actual possession of at least a significant portion of the property

Will: Execution

- Writing - Signed by Testator (any mark, or other at T's direction in T's presence) - Testamentary intent - Signed by at least two witnesses (within a reasonable time of T's signature, witnessed or T acknowledged T's sig. ) OR a notary

Agent Contracts: Actual Implied

Authority exists if A reasonably believes authority exists through: Necessity: to do what is reasonably necessary to complete expressly assigned task Custom: performed by persons with the agent's title or position Prior Dealings: A reasonably believes because authorized from prior acquiesence

Agent Contracts: Ratification

Authority is granted after A entered into contract IF P has knowledge of all material facts regarding the K AND P has accepted benefits of K BUT may not alter any of K's terms

Financing Statement: Ipso Facto Authorization****

Automatically authorizes FS when authenticates the sec agreement covering the same collateral - Sec Agreement Signed: FS authenticated

Venue

Which Fed Court can hear this case? 2 choices: (1) Where ALL Ds reside (human: domicile; business: where subject to PJ) (2) Where a substantial part of the clam arose

Privileges and Immunities Clause: Article IV vs. 14th A

1) Article IV (strong) - State laws that discriminates economically against the citizens of a different state - Focus on ability to earn livelihood - Violates UNLESS necessary to achieve an important government purpose 2) 14th Amendment (weak) - Guarantees of national citizenship

Easement: Appurtenant v. Gross

1) Easement Appurtenant: It takes 2 parcels (D's land benefits: S's land burdened) (i) easement MUST be directly beneficial to use and enjoyment of the D (not just make more profitable) (ii) Benefit: attaches to land and passes automatically w D's title (EVEN when not mentioned in conveyance) (iii) Burden: passes with S estate EVEN without mention UNLESS purchaser is bona fide WITHOUT notice 2) Easement in Gross: ONLY ONE parcel (holder's interest is NOT dependent on ownership or possession of another tract (i.e. right to place billboard) (i) owner of easement is NOT benefited in use or enjoyment of their own land (ii) NOT transferable UNLESS it is for commercial purposes (personal/unique to holder)

Express Easement: Creation

1) Grant: (i) granted by agreement of owner (ii) Requires: Writing with (parties, description of S land, exact location of easement, purpose for which easement will be used, Signature of Grantor (unless under 1 yr)) 2) Reservation: Grantor conveys title to land but reserves the right to continue to use the tract for special purpose

Privilege Waiver:

1) Intentional Waiver: A party knowingly discloses communication or info MUST also disclose anything (concerning the same subj. or that ought, in fairness, be considered also) 2) Inadvertent: Privilege holder may take back information IF took reasonable steps to prevent disclosure, promptly took reasonable steps to rectify 3) Subject Matter: A voluntary waiver of privilege as to some communication will waive priv. to other communications IF (partial disclosure was intentional; concerns the same subj. matter; fairness requires disclosed and undisclosed be considered together) - Exceptions: (i) future crime/fraud; (ii) clients put legal advice in issue ("I was only doing what my atty recommended") (iii) atty/client dispute)

Choice of Law: Contracts

1) Parties can choose the law in K for matters of (i) K construction (ANY) and (ii) K validity (ONLY if (a) choice is not contrary to a fundamental policy of state w/ greater int, (b) must be a connection to parties or transactions. (c) choice is free of duress) 2) If not agreed to by parties: (Vested Rights Approach: All issues of K construction governed by place of construction; issue of K validity governed by place of execution) (MSRA: Step 2 consider: Place of: negotiation, execution, performance, home state of each party AND where SM is located)

Corporation: Types

1) Public: Large: many SHs; publicly traded int 2) Private/Closely Held: (i) small (few SHs) (ii) No ready public market for stock (iii) SHs can eliminate Board and have SH management( through article or unanimous written agreement of SHs)

Types of Devise

1) Specific Legacy: (can only be satisfied by a specific asset (i.e. watch); get all stocks when it says, "my stocks"- 100 stocks split to 400 shares: A gets 400 2) General Legacy: Money (dollar amount) 3) Demonstrative Legacy: General devise from a specific source: ($25k from my GM stocks) 4) Residuary Legacy: Rest of the estate 5) Intestate: When the residuary clause does not dispose of entire estate 6) Class Gift: Devise to a class of persons

Constitutional Law Approach

1) Who is passing the law? 2) What is the subject matter? 3) Match the appropriate power 4) Who is effected by the law?

RAP: reform

1. "Wait and See" or "Second Look" Doctrine (majority): the validity of any suspect future interest is determined on the basis of facts as they now exist, at the end of the measuring life 2. Uniform Statutory Rule Against Perpetuities (USRAP): codifies the common law RAP and provides for an alternative 90 year vesting period

Landlord Liability

1. For Acts of Other Tenants: L must control the common areas (e.g., lobby, elevators, stairs), in such a way as to avoid unreasonable risk of harm to others 2. Caveat Lessee:Let T beware of known hazardous conditions MUST (CLAPS): COMMON areas (maintain hallways, stairwells) LATENT defects rule (warn of hidden defects that L knows/should know about, duty to warn not repair); ASSUMPTION of repairs (L who voluntarily makes repairs MUST complete them with reasonable care) PUBLIC use**** (L who leases public space and should know bcse of nature of defect (trivial) AND length of lease (short) that T won't repair, L is liable (i.e. convention hall)); SHORT term leases of furnished dwelling (L is liable for any defects on site, even tort)

Contracts:Big Picture

1. Formation (is there a deal?) 2. Meaning (what is the agreement?) 3. Performance and breach (What order must it be performed? What happens if it is not? Who broke promise?) 4. Third party K issues (who else can enforce?) 5. Defenses (can either get out of the deal?) 6. Remedies (legal detriment? what can be recovered?)

Title Assurance: Types of Deeds

1. General Warranty: warrants against all defects regardless of when they arose; including from grantor's predecessors (contains all 6 covenants) 2. Special Warranty Deed: warrants against defects that arose since G obtained title (G has not conveyed to anyone else; land is free from encumbrances made by G) 3. Quit Claim Deed: No warranties about title (implicitly promises to provide marketable title at closing ONLY) Warranty: Protects against defects discoverable BEFORE closing

Collateral: Types

1. Goods (i) Consumer goods (ii) equipment (iii) farm products (iv) inventory 2. Semi-intangible and Tangible Property (i) Instruments (ii) chattel paper (iii) accounts (iv) deposit accounts (v) commercial tort claims (vi) general intangibles 3. Proceeds

Water Rights: Ground and Surface Water

1. Ground Water (under ground): permitted reasonable use, must not be wasteful 2. Surface Water: from rain, springs, melting snow: common enemy rule (landowner may change drainage or make other changes/improvements to land to combat the close of surface waters BUT prohibits unnecessary harm to other's land

Excused Performance

1. Impracticability 2. Impossibility 3. Frustration of Purpose 4. Anticipatory Repudiation 5. Reasonable Ground for Insecurity 6. Improper Performance 7. Nonoccurrence of a Condition 8. Excuse by Later Contract

Contract Avoidability

1. Incapacity (age/mental/intoxication) 2. Statute of Frauds 3. Illegality 4. Public Policy 5. Misrepresentation 6. Nondisclosure 7. Duress/Undue Influence 8. Unconscionability 9. Ambiguity 10. Mistake

Vested Remainders

1. Indefeasibly Vested Remainder: (no strings attached) 2. Vested Remainder Subj to Complete Defeasance: taking is NOT subj. to any condition BUT possession could be cut short because of cond subsequent (In B if: O to A for life, then to B, provided that B lives to be 25, if not then to C) 3. Condition Precedent: Conditional language appears before the language creating the remainder (O to A for life, then if B reaches the age of 21, to B) 3. Vested Remainder Subj. to Open: (O to A for life then to A's children) A's children are subject to open to allow in more children

Hearsay Analysis

1. Is it definitely a statement? 2. Did it occur outside of the courtroom? 3. Is it being offered to prove the truth in the matter? (vs. to show knowledge, motive, etc.) 4. Does any exception apply? 5. Is the probative value subs. outweighed by unfair prejudice?

SOF: Exceptions

1. Judicial admissions: D admits in pleading or testimony that he contracted 2. Performance: Transfer of Real Estate: AND any 2/3 (improvements on land; Payment; Possession); Service Ks: full performance by either party (NOT part performance***); Sale of Goods: Part performance BUT only for part that has been performed; Specially Manufactured Goods: once seller makes "substantial beginning" (enough that it's clear that what working on is special)

Pleadings: R 12 Defenses

1. Lack of SMJ (never, ever waived, can be brought up even on appeal) 2. Lack of PJ (waived if not brought up in answer) 3. Improper Venue (waived if not brought up in answer) 4. Insufficiency of Process (waived if not brought up in answer) 5. Insufficient Service of Process (waived if not brought up in answer) 6. Failure to State a Claim (waived if not brought up in answer) 7. Failure to join Indispensable Party

Evidence: Policy Based Exclusions

1. Liability Insurance 2. Subsequent Remedial Issues 3. Compromise Offers and Negotiations 4. Pleas, Plea Discussions and Related Statements 5. Offers to Pay Medical Expenses

Wills: Revival

1. Majority: Revived ONLY if re-executed OR republished by codicil NOT by revoking the instrument that revoked the will 2. UPC: Not automatically revived (3 tests MUST be met): (i) Will 1 still exists, (ii) T intended to revive it, (iii) Will 2 revoked by physical act

Breach

1. Material: Breach is so serious that it allows the other party to decline his performance, terminate the K and sue for full expectation damages - NO substantial performance; get all payment back - Total Breach: time of performance and right to cure have expired 2. Non-Material Breach: Substantial performance, performance must continue (cannot breach for breach)- no recission, breaching party is allowed to continue- can recover for cost of completion or curing defect

Expert Testimony

1. Must be qualified (education or experience) 2. Proper Subject Matter (scientific, technical, or other specialized knowledge that will be helpful to jury in deciding (not obvious) 3. Proper basis for opinion (based on a "reasonable degree of probability or reasonable certainty" from personal knowledge, other evidence, facts outside of record if type reasonably relied upon by experts) 4. Reliable and Relevant (must be based on reliable principles and methods AND apply those principals and methods to a the facts: TRAP: Testing; Rate of error; Acceptance by other experts; Peer review and publication)

Conveyance: Land Purchase Contract

1. Negotiated and signed by both parties to prepare to consummate the transaction (ONLY operable until the closing then deed becomes controlling) 2. Must meet SOF (can be formal and informal memorandum) 3. Essential Terms: (3PS) Parties, Price, Property description (thru gov't survey, metes and bounds, subdivision map) Signature (of party sought to be bound) 4. 2 implied promises from seller: (i) to provide marketable title at closing and (ii) not to make any false statements of material fact

Tenant Duties to Landlord

1. Not to commit waste 2. To repair (by express agreement or if lease is silent the T must maintain and make ordinary repairs) 3. Loss (common law: T liable for ANY loss to premises, including by force of nature) (modern/majority: T is off the hook, may end lease when premises destroyed without T's fault) 4. Pay rent (if T breaches and is in possession: L can evict and recover rent due T becomes T at sufferance; L must NOT engage in self-help) OR (T breaches and is NOT in possession (SIR) SURRENDER: abandonment treated as implicit offer to surrender (if unexpired and term is greater than one year must be in writing SOF, can satisfied by letter sent to T); IGNORE: and hold T responsible for lease (minority allow, majority: must try in good faith to mitigate) RE-LET

Contracts: Revocation Exceptions*****

1. Option Contract: Offer PLUS paid for promise not to revoke for some period of time (MUST be consideration AND a promise) 2. Firm Offer: ONLY for sale of goods- signed offer by merchant (any person in business) with an express promise to not revoke; NO consideration requirement; if no revocable time frame stated then reasonable time; CANNOT exceed 3 months (express or not) 3. Detrimental reliance: offeree's detrimental change in position based on reasonably foreseeable reliance 4. Start of performance: On unilateral K (not mere preparation) irrevocable for a reasonable amount of time to complete performance

Contract: Monetary Remedies

1. Partial Breach: Cost of completion/repair defects; comparison value as alternative for partial performance 2. Full Breach: expectation damages; reliance damages; restitution - Expectation: recover what expected to gain from K - Incidental: Costs incurred in dealing w breach (i.e. storage, inspection, transportation), always recoverable - Consequential***: damages arising from specific circs of particular K and limited to D's FORESEEABILITY at time of formation (look for something in facts: "P suffers lost profits as a result of the breach") - Reliance: money spent in reliance of K (in preparation of K) - Avoidable: required to avoid any post breach costs w/o undue burden - Certainty: must be able to determine damages with certainty (court can assess reasonable- quasi)

Contracts: Acceptance Methods

1. Performance: unless otherwise clearly stated; requires at least part EXCEPT unilateral (requires complete) 2. Promise: offeree completes every essential act of making promises 3. Silence: not acceptance unless stated in terms as acceptance ("by your silence you...") Written: Mailbox rule (effective at moment of dispatch unless otherwise required) 4. Shipment: acceptance and breach UNLESS seasonally indicates accommodation

Hearsay Exceptions

1. Present Sense Impression 2. Excited Utterance 3. Present Physical Condition 4. Existing State of Mind 5. Declaration of Intent 6. Business Records 7. Public Records 8. Medical Diagnosis or Treatment 9. Legislative Fact 10. Learned Treatises 11. Past Recollection Recorded

Hearsay Exceptions: Unavailability of DT

1. Prior testimony 2. Statement Against Interest 3. Dying Declaration 4. Forfeiture

Warrants: Requirements

1. Probable cause 2. Particularity (describes place to be searched and the person or things to be seized) 3. Neutral and Detached Magistrate

Free Speech: Types

1. Protected: Public concern (matters of public concern or any matter of political, social or other community concern) & Music 2. Partly Protected: Indecent (but not obscene) media broadcast, indecency, defamation (of public figure/official), sexually offensive, cable, advocating violence, private concern, commercial (some), Express conduct 3. Not protected: Commercial (illegal or deceptive), clear and present danger, incitement of illegal activity, defamation (not of public figure/official), Gov't employees on the job, Obscenity

3rd Party Beneficiary

1. Provided at time of K 2. Enforceable right to receive (intended vs. incidental & creditor vs. donee) 3. Intent to create 3rd party may be express or implied 4. Original parties may modify or eliminate promise to intend beneficiary UNLESS beneficiary is VESTED - KNOWS about rights AND (i) materially CHANGES position; (ii) SUES to enforce; (iii) ASSENTS to being 3rd)

Free Speech: Forum

1. Public and Designated Public Forums 2. Limited Public Forum 3. Non-public Forums and "Commercial ventures"

Breach: Seller v. Buyer

1. Seller Breach: Buyer keeps goods- B can recover fair market value (as delivered) if perfect OR cost of repair 2. Seller Breach: Seller has goods- Greater of: market price at time of discovery of breach (K price) OR reasonable replacement price 3. Buyer Breach: Buyer Keeps Goods- K price 4. Buyer Breach: Seller Keeps Goods- K price less resale price, unless seller cannot resell in which case seller can recover entire K price 5. Buyer Breach: Seller is volume seller: Seller recovers lost profit (what he stood to profit if he had sold it)

Contracts: Offer Requirements

1. Serious intention to become bound (objective) 2. Definite (material terms reasonably certain/definite- enough to determine if breach has occurred 3. Clearly communicated by offeror

Statute of Frauds: When

1. Surety (promise to answer for debts of another) UNLESS main purpose was to benefit guarantor 2. Service contracts not capable of being performed with a year from time of contract (specific time period) "capable"- with unlimited resources; NOT lifetime deals (P agreed to do X for the rest of her life- no SOF(may die within year)) 3. Ks for Sale of Goods Price of $500 or more (total of all goods in K) 4. Ks for sale of Lands or Transfer of Interest in Land (agreement to sell; option to sell; mortgage; lease (over a year); easement) NOT building on property (services) 5. Marriage 6. Executor (or Administrator)

Testimonial Evidence

1. Testimonial evidence: Primary purpose of the interrogation is to establish/prove past events relevant to later prosecution - Includes prior testimony at preliminary hearings, prior testimony before a grand jury, testimony from a former trial, and police interrogations 2. Non-Testimonial: The primary purpose is to obtain police assistance to meet an on-going emergency

Holographic Will

1. UPC: requires signature and material provisions be in T's handwriting; no witness necessary 2. Other states: Requires two attesting witnesses

Future Interest: Transferee

1. Vested 2. Vested Remainder Subject to Open 3. Contingent Remainder 4. Alternative Contingent 5. Executory Interest

Present Estates

1. What is the language creating the estate? 2. What are the distinguishing characteristics? (deviseable, descendible, alienable) 3. Which future interest, if any, is the estate capable of?

Administration of Estate

1. probate will (not effective unless admitted into probate) 2. Appointment of personal representative (administers estate, nominated in will or by an administrator by priority of appointment (1st surviving spouse, then to beneficiaries)) 3. bond requirement (unless waived in Will, PR MUST post a bond 4. Power to Sell Property (in absences of explicit authority in will, PR must get a court order to sell real prop) 5. Inventory Requirement (PR must file an inventory of all assets of the estate, must include value of prop) 6. Publication of Notice to creditors (in the legal notices section of the newspaper and actual notice to all known or reasonably discoverable creditors)

Approaches to Choice of Law

1.Vested Rights Approach 2. Most Significant Relationship Approach 3. Governmental Interest Analysis Approach

Covenants: Elements

1.Writing (SOF) 2. Intent (original parties intend to bind successors) 3. Touch and Concern (relates to the enjoyment, occupation or use of property 4. Horizontal Privity: relationship between both original parties; successive interests (grantor/grantee or landlord/tenant or mortgagor/mortgagee) (***absence is usually why covenant doesn't run) 5. Vertical Privity relationship between original and successor (an un-hostile nexus between A and A1 (contract, will, inheritance) NOT adverse possession 6. Notice: successor MUST have notice (actual, record, inquiry) (MONETARY DAMAGES**)

Limits on Congressional Power*****

10th A - All powers not delegated to the US by the constitution, nor prohibited by it to the states, are reserved to the States - Congress CANNOT compel state regulatory or legislative action BUT CAN induce state government action by putting strings on grants (cannot be unduly coercive)

State Immunity

11th Amendment Principle of sovereign immunity - Federal courts may NOT hear suits by citizens against state governments - Whether citizen is from state or different state, or for money or injunction - Does NOT bar suits against subdivisions of state (cities, towns, counties)

Impleader

3rd Party Practice - D wants to bring in TPD because owes indemnity or contribution on underlying claim - Requires: filing 3rd party claim naming TPD; service of process on TPD (must have PJ) - After TPD joined (P may assert against TPD if same T/O AND TPD may assert against P if same T/O) - ANALYZE each claim (SMJ: diversity, FQ, supplemental)

Intervention (rare)

3rd Party wants in: Required IF: Fed statute grants right OR EACH of following is true (i) Intervenor claims an interest i the pro/transaction at issue AND (ii) disposing action may impair/impede interest AND (iii) existing parties do not adequately represent interest

Guilty Pleas: Withdraw

4 Bases for withdrawing after sentencing 1. Plea was involuntary (some mistake in plea taking ceremony- NOT merely because it was based on P's threat to charge) 2. Lack of jurisdiction 3. Ineffective assistance of counsel 4. Failure of prosecutor to keep an agreed upon plea bargain

Criminal: Amendments 4, 5, 6, 8

4: Prohibition against unreasonable search and seizure 5: Privilege against compulsory self-incrimination AND double jeopardy 6: Speedy trial, trial by jury, to confront witnesses (confrontation clause), assistance of counsel 8: death penalty and prisoner rights

Privilege Against Compelled Testimony

5th A to remain silent - Can be asserted by anyone under oath in either crim or civil case - Wherein the response might tend to incriminate them - Must assert in civil proceedings or waived in crim proceedings NOT apply to non-testimonial evidence: blood sample, handwriting sample, voice sample, hair sample

Confrontation Clause

6th A: criminal right to confront W - Criminal case - DT is unavailable - Testimonial ev is inadmissible - UNLESS D is given a prior opp to examine the DT - May be satisfied either before or at trial

Contracts: Interpretation

7 Maxims 1. Ambiguity construed in favor of non drafter 2. If there is a list but not general term such as "including but not limited to" then it is limited to the list 3. If K is both standard and hand written: hand written term control 4. Specific terms given greater weight 5. Court should give full effect to all K terms 6. Ordinary meanings given to ordinary terms; technical meanings given to technical terms 7. If one reasonable interpretation would invalidate and the other would not: go with validating one

Causation

Actual: but for Proximate: direct cause/foreseeablility

Elements of a crime

Actus Reus Mens Rea Causation

Actus Reus

Actus: Act (any voluntary physical movement) Reus: Result (conduct results in proscribed harm)

Rape

Actus: slightest penetration completes the crime of rape

Hearsay Exception: Existing State of Mind

A THEN existing (i) state of mind (ii) emotion ("I'm so excited", I'm going to take a trip") (iii) sensation - CANNOT discuss external events that cause the state of mind; CANNOT include statement of memory or belief to prove the fact UNLESS it relates to execution, revocation, identification or terms of DT's state of mind (i.e. "I won the lottery") - ONLY DT's state of mind (not 3rd) - At the time "I remember how hot I felt yesterday"- can use to show remembered yesterday but NOT that it/DT was hot yesterday

After Born heirs

A child in gestation at time of death is treated as living (has to live 120 hours)

Title: Shelter Rule

A bona fide purchaser is allowed to transfer his protection to a later grantee (ex. S-B (no record), S-C (records), C-D (D has actual knowledge of S-B) C's protection transfers to D)

Rule of Destructibility of Contingent Remainders

A contingent remainder is destroyed IF still contingent upon expiration of the preceding estate- SO the next vested estate comes into possession - abolished (now: O holds the estate subject to B's springing interest)

Contracts: Acceptance

A voluntary manifestation, to assent to the terms, thereof made by the offeree, in a manner invited (reasonable under circs) or required by the offer; MUST be unequivocal and made to offeror

Guilty Pleas and Plea Bargaining

A court will generally not disturb a guilty pleas after sentencing Judge MUST specifically address ON the record - Nature of charge AND tell D maximum authorized penalty AND any mandatory minimum penalty AND that he has the right to plead not guilty and demand a trial

Equitable Servitude

A covenant that, regardless of whether it runs with the land at law, equity will enforce against successors of burdened land who HAVE notice of covenant. - Generally created by covenant contained in writing (SOF) (INJUNCTION***)

Foreclosure: Priorities

A creditor MUST record to obtain priority - Generally first in time priority - Exception: Purchase Money Mortgage (mortgage given to secure a loan that enables the debtor to acquire encumbered land- gets "super priority"- first priority in the land financed) - Subordination agreements: Sr. creditor may subordinate to a Jr.

Contesting a Will: Insane Delusions

A distinctive form of incapacity: T is otherwise sane BUT the will (or a gift in the will) is the product of an insane delusion, having NO basis in fact or reason, T adheres to against all reason or evidence

Negligence: 3rd Party Liability

A duty may be imposed ONLY if the defendant (i) had the actual ability and authority to control the third person's actions and (ii) knows or should know that the third person's actions require the exercise of that control (i.e. Parent/child: parents have a duty to prevent their children from injuring another if they know or should know that their children's acts are likely to cause injury)

Easement

A grant of a non-possessory interest that entitles the holder to some form of use or enjoyment of another's land - Language: 1) Property: dominant land: benefited land; Servient land: burdened land. 2) Dominant owner: easement holder; servient owner: owner of servient land

Limited Liability Company (LLC)

A hybrid between corp. and P, in which its owners/members have the same limited liability as shareholders in a corp. plus the tax benefits of a P - Owners usually called members

Appeals: Adverse Judgment

A judgment granting relief MUST be different from what was requested (even if trial court erred, the losing party cannot appeal IF they received the relief sought

Involuntary Self-Defense

A killing with criminal negligence OR Misdemeanor manslaughter (killing while committing a misdemeanor or un-enumerated felony)

Adverse Possession

A method of transferring interests in land without the consent of the prior owner, and even in spite of the dissent of such owner (i) Continuous (uninterrupted (given nature/ordinary course of property) (ii) Open and Notorious (objective- enough that reasonably attentive person would know, constructive not actual) (iii) Actual (must be an actual entry) (iv) Hostile (w/o true owner's consent)

Leading Questions

A party may use leading questions ONLY when: 1. Calls a hostile W 2. To establish pedigree 3. Direct to relevant place/time 4. Help if confused/reluctant/forgetful/child 5. A judge's discretion 6. ON CROSS (UNLESS its your W called as hostile by opp party)

Evidence: Best Evidence Rule

A party who seeks to prove the contents of a document, must either, provide the original writing, or provide an acceptable excuse for its absence - Court's discretion to accept - Includes ALL docs - Duplicate: admissible to same extent as original UNLESS it would be unfair or a genuine question is raised as to authenticity - Excuses: lost/cannot be found with due diligence; destroyed (no bad faith); cannot be obtained w legal process; court MUST be persuaded by preponderance of ev. - Watch for: W with personal knowledge that fact exists: don't need writing to prove fact (i.e. boss see employee work; doesn't need time card)

Wills: Renunciation

A person may renounce ANY interest in or power over property w/in 9 months of D's death (EVEN if there is a spendthrift provision) unless restricted by statute - Disclaimer MUST: (i) be in writing (ii) declare the disclaimer (iii) describe interest or power being disclaimed (iv) signed by disclaimant (v) delivered or filed

Murder: 1st degree

A premeditated killing of a person Mens: Intent/knowledge that conduct would cause death and premeditation (knowing, purpose, malice aforethought) Always: Homicide of a Police Officer (D MUST know V is law enforcement AND V must be acting in line-of-duty)

Search and Seizure: when

A search has occurred when the person has a constitutionally protected reasonable expectation of privacy 2 prong test: - Subjective: D actually expected privacy - Objective: expectation is one that society is prepared to recognize as "reasonable"

wiretapping

A search, MUST have warrant, requires more than PC, must minimize (number/content of convos intercepted) Exceptions: unreliable ear- conversation in public (no expectation of privacy)

Secured Transaction

A transaction intended to create a security interest in personal property OR fixtures - Generally involves a sale on credit or a loan in which the seller or lender obtains a lien on some or all of the D's property as security for payment - Look for: Credit transactions, an arrangement that creates a lien in favor of the creditor in D's personal property

Covenants Running With the Land (real covenants)

A written promise to do/not do something related to the land (NOT the grant of property interest but a contractual limitation or promise regarding the land) 1. Restrictive covenant: Promise to refrain from doing something related to the land (because negative easements are too restricted) 2. Affirmative covenant: promise to do something related to the land (i.e. promise to paint our common fence) - Benefit requires: writing, intent, touch and concern, vertical privity -Burden requires: duty to perform; all 6 elements

LLC: Management

Two structures: operating agreement controls Member managed: similar to P Manager Managed: Decision making similar to a corp. BoD, professional managers, separation of ownership and management

Class Actions: Notice

ALL classes: court gives notice to get feedback before settlement or dismissal - Special Type 3 (Damages) Notice***: Court must notify members they are in the class individually (paid for by Reps) INCLUDES (A) right to opt out (notice that they will be bound by decision if not) (B) Right to enter a separate appearance through independent counsel (C) Given additional option to opt out upon court's request for feedback regarding settlement or dismissal (usually)

Divorce: Child Support

ALL parents owe ALL their children a duty of support - Support ONLY ordered against non-custodial parent (never had it, didn't get it after divorce) - Amount based on child support guidelines (parental income, number of kids) - Until 18 OR if still in HS until graduates OR turns 19 (first) - Obligation generally ends upon death of paying parent - Modifiable: based on changes in income of parents, child's needs, any other applicable factor (not self-inflicted reduction in income) - Arrears: NOT modifiable - Jurisdiction: (Uniform Interstate Family Support Act (UIFSA): tribunal issuing order maintains jurisdiction over that order throughout the existence of the support obligation; may be able to transfer jurisdictions at court's discretion with good cause if NO party continues to reside in that forum

Corporations: 16(b) Recovered Stock

ALL profits from SALE are recoverable by the corp. - ONLY publicly traded corps. - Relates to ANY (purchase and sale) OR (sale and purchase) within a 6 MONTH period - Applies to directors, officers, principal SH (over 10% of shares) at BOTH time of PURCHASE and time of SALE - NOT if purchases 10% then sells 5% (only 5% owner at sale) - if sells 700 share of stock at $6 in March then buys stock 200 shares for $2 in May (corp. can recover $4 per share (diff btwn sale and repurchase prices) on the 200 shares repurchased so $800)

Wills: Omitted Spouse

ALWAYS look at date of will: If made BEFORE marriage: assume T forgot to add wife and presumed intent that all goes to spouse IF children in common (COMPLETELY overrides pre-marital will) - UNLESS (i) the will was done "in contemplation" of marriage (expresses intent to leave out) OR (ii) transfers outside of will (shows intent to support through other means

Evidence: Subsequent Remedial Actions

ANY measure taken by a party to make a condition safe after an injury; Not admissible for purposes of proving negligence, culpability, conduct, product defect, or need for warning UNLESS to impeach ownership, control, feasibility ONLY IF disputed by D

Intestate

ANY part of D's probate estate not devised by will passes by intestate succession (applies ONLY to probate estates: could have been controlled by will if T had one) NOT life ins., prop held in trust, right of survivorship, securities payable on death (POD) or transfer on death (TOD) or property NOT owned by T at death

Non-Hearsay Opposing Party's Statement

ANY statement made by a party is admissible for its truth IF offered AGAINST the party (party availability irrelevant) - 2 limits: a) D must actually be a party (V no party); b) MUST be offered by an OPPOSING party AGAINST the party (not used to support DTW) - Expand (3 A's) (a) Adopted: written by someone else but signed by D (a) Agent's or employees (employed at time, not on job but within scope of employment) (a) Authorized speakers (D authorized person to speak on their behalf)

Vested Rights Approach

Approach to choice of law: - Territorial Approach (apply law where the rights of P vested) - 4 Steps: (1) determine substantive area of law (Ks, torts, etc.) (ii) Find vesting rule for that area of law (iii) apply vesting rule to choose the law to apply (iv) state the result of applying the law chose by rule - Note: There is a rule for every area of law

Attorney-Client Privilege

Absolute privilege MUST have 1. a communication (actual exchange between atty and client NOT underlying information, pre-existing docs pr physical evidence) 2. Between client (if co. then only those identified to make decisions, co. has right to waive) 3. And an Atty (or any agent reasonably believed to be necessary to facilitate the provision of legal services) 4. That is confidential (Not if 3rd party listening in; client requests disclosure to 3rd; Joint client rule: common interest priv. does not apply btwn clients); AND 5. Concerns legal advice

Contracts: Conditional Acceptance

Acceptance limited by words such as: "if," "only if," "provided," "so long as," or "on condition that" - Common law: rejects offer, become counteroffer - U.C.C.- rejection unless goods are shipped/accepted

Excuse by Later Contract

Accord and Satisfaction (substituted performance) - Agreement by parties to already existing K to accept a different performance in satisfaction of existing obligation; requires consideration (if new agreement performed then obligation is excused; if not can recover on either original or accord) Novation: Obligee agrees to accept the delegate as a complete substitution and releases obligor from liability and duties (requires: agreement from both original parties)

Wrongful Death

Action brought by P's beneficiaries (spouse/parent/child); damages: loss of economic support, grief, emotional distress

Wills: Incorporation- Acts of Independent Significance

Acts having an independent lifetime motive may impact on the will as well - Lifetime Act + Lifetime Purpose/Motive (can increase/decrease value of devise- the effect on devise is irrelevant) - ONLY TANGIBLE personal property: (may not dispose of property y reference to acts and events that have significance apart from their effect on disposition) - I.e. "may have everything in my living room" (gets more furniture); "may have my car" (buys new car) - EXCEPTIONS: NO TITLE docs (deeds, stocks, certificates, etc.); you don't get the stock/deed willed to someone else just because it is stored in the hope chest; CASH AND TANGIBLES ONLY***

Corporation: Promoter

Acts on behalf of the corp. before the corp. legally exists - Pre-Incorp. contracts***** (i) corp. not liable UNTIL it adopts the K either (a) Express: BoD takes an action adopting the K (passed by BoD agreeing to be bound by K) OR (b) Implied: Corp.'s knowing use or receipt of benefits from the K - Promoter Liability**** unless K says otherwise: P will remain liable UNTIL there has been a NOVATION - BOTH liable to corp. adopts but NO novation - Tip: talk about liability of both

Insanity

Affirmative defense; no exact definition Tests: (1) M'Naghten Rule (2 prong): (i) disease of the mind,(ii) caused a defect of reason (iii) such that D lacked the capacity to either (a) know the wrongfulness of his actions OR (b) know the nature and quality of the actions (2) Irresistible Impulse Test: because of mental illness D was unable to control his actions or conform his conduct to the law (3) Model Penal Code Test: when as a result of mental disease or defect; D lacked substantial capacity to conform his conduct to the requirements of the law (4) Durham Rule: D's conduct was a product of mental illness (no lack)

Fraud

Affirmative misrepresentation or omission, of a material fact, intending to induce, justifiable reliance on the statement, resulting in damages

Frustration of Purpose

After K is entered into: a later event defeats mutually understood purpose (shared AND a fundamental assumption of both parties); risk was not shifted to person seeking relief (force majeur clause: "in the event of rain...") - Prohibition or prevention by law: later law makes mutually understood purpose of K illegal (K for plastic surgery to dance nude, later nude dancing banned)

Impossibility

After K is entered: - ONLY objective impossibility NOT subjective (i.e. can't deliver corn because aphids ate it (subjective), get in your truck and buy someone else's corn to distribute on K) - Death/Incapacity: only if person is necessary to performance of K - Damage/Destruction of K's subject matter: Specific thing necessary to performance (UCC; consider risk of loss)

Default Methods: Retention of collateral

After default and repossession, SP may propose retaining the collateral in full or partial satisfaction of th debt ONLY if nobody objects - MUST get consent of D (authenticated record of agreement OR full strict foreclosure: D fails to object w/in 20 days) AND Send proposal to ANY other SPs (that SP is aware have a claim): IF ANY object w/in 20 days MUST be disposed of by sale

Breacher's Rights

Against unjust enrichment: P not entitled to recover more than remedy Cure: legal right to fix error (common law: expires when K expires; UCC: reasonable amount of time)

Contracts: Incapacity Age

Age: voidable by minor; purely by age; Major: restitution (restore any benefit receive from minor); Minor (return any benefit they STILL possess: no compensation for losses) may be sued for tortious conduct; cannot disaffirm and continue to receive advantages - Ratification; minor expressly ratifies after turns age of majority OR indirect: continues to receive benefits after age of majority and a reasonable amount of time passes Contract for necessaries (when adult: liable for reasonable value of goods- not amount paid, only if no parent/guardian)

Equal Dignities Doctrine

Agent Contracts: If the contract itself is the type that must be in writing (SOF), then express authority to form agreement MUST also be in writing - Watch for land sales

Corp. Decision Making: Officers

Agents of Corp. - President: generally has inherent authority to bind corp. to Ks in ordinary course of business - Hire/monitor lower-level employees - Make day-to-day decisions - Owe same duties as Directors - Selection and removal by Board - SHs hire and fire Directors BUT Board hires and fires officers

Contracts: Mutual Assent

Agreement - Commitment requirement, certainty, offer, acceptance, power to terminate acceptance (death/incapacity, lapse, revocation, rejection, counteroffer)

Partnership: Dissolution Not At-Will

Agreement among partners about dissociation/dissolution ; dissolved according to terms OR if any single partner dissociates AND majority of remaining partners vote to dissolve within 90 days

Executive Agreement

Agreement between US and any foreign country, effective when signed by Pres. and other head (not binding/gentleman's agreement) - Subject to judicial review

Accomplice

Aides, advises or encourages principal in the commission of a crime - Actus reus: giving assistance (can be trivial; not necessary/helpful; omission is enough) - Causation: Principal caused the crime - Withdrawal: Must retract encouragement; do everything possible to neutralize assistance; OR contact police - Conviction: can be convicted of same as P and ALL foreseeable crimes (P need not be found guilty)

Hearsay Exception: Public Records

All levels/branches of gov't- no private organizations

Bilateral contract

All non-unlitaral contracts are bilateral UNLESS they are regarding reward, prize, contest Usually silent as to method of acceptance BUT must accept in manner if expressly required

Mortgage: Transferred Interest

All parties may transfer their interests: Note and Mortgage MUST pass to the same person for xfer to be complete follows properly transferred note (mortgage and note must transfer to same person to be valid)

Collateral: Goods

All things that are moveable at the time the sec int attaches - Type distinguished based on how D is using them - Types: (1) Consumer goods: Used or bought primarily fr personal, family or household goods (2) Equipment: Used or bought for use primarily in business (3) Farm products: Crops, livestock (unborn young), or supplies used or produced in farming operations (4) Inventory: held by person for sale or lease to be furnished under service contracts; materials used/consumed in business

Future Advance Clause

Allows SP to secure interest (potentially priority) in current sec agreement for future financial advancements (do not need to refile on additional sums) - MUST be in express terms of agreement UNLESS collateral is of type that is rapidly depleted and replenished (i.e. accounts/inventory) then intent is implied

Durable Power of Attorney

Allows surrogate management for person while capacitated and incapacitated (continues through incapacity until P dies) - P can terminate ANYTIME if competent - Owes duty of loyalty, care and obedience

Mental State: Specific Intent

Always has 2 intents (Explicit and Implicit) - The act (intent) of doing AND the doing of it with specific intent Have more defenses (voluntary intoxication; unreasonable mistake of fact) - Mistake only has to be honest (not reasonable- can have head in sand to some degree) Memorize: FABLE SCARFF- False Pretenses; Assault; Burglary; Larceny; Embezzlement; Solicitation; Conspiracy; Attempt; Robbery; First Degree Murder; Forgery

Fundamental Corporate Change

Amending AoI, Dissolution, Merger (disappearing), Sale of Substantially All Assets not in ordinary course of business: - Generally requires: (i) Approval by BoD (ii) BoD notify SHs (iii) Special Meeting for SHs to vote on change (REQUIRES majority of those entitled to vote: not majority of actual votes) (iv) if SHs approve (in closely held: opposing SHs have right to force corp. to buy them out (dissenting SHs right to appraisal for fair value) (v) Inform the state of incorp. via filing

False Imprisonment

An act, intending to, confine another, within the boundaries fixed by the D

Assault: tort

An act, with the intent to cause, reasonable apprehension, of imminent harmful/offensive contact, but contact does not occur

Conversion

An act, with the intent to, completely dispossess, another, of their moveable personal property, resulting in damages

Trespass to Chattel

An act, with the intent to, interfere with, the moveable personal property, of another, with damages

Contract

An agreement that is legally enforceable

Pleadings: Complaint Mistake

An amended complaint changing the party or the name of the party against whom a claim is asserted relates back to the date the original complaint was filed IF: (i) the amendment concerns the same conduct, transaction, or occurrence as the original complaint AND (ii) party to be brought in received notice w/in 120 days of the action AND (iii) she will not be prejudiced in maintaining her defense on the merits (iv) that she knew/should have known that, but for a mistake concerning the proper party's identity, the action would have been brought against her

Trusts

An arrangement under which the trustee holds legal title to property for the benefit of the beneficiaries (Trustee has BURDENS and Beneficiaries have BENEFITS of property ownership) - 2 Types: (1) Inter vivos: created during lifetime of grantor (revocable or irrevocable) (2) Testamentary: Created in will (irrevocable)

Aggravated Assault

An assault PLUS - the use of deadly or dangerous weapon OR with the intent to rape, maim or murder

Partnership

An association of two or more persons carrying on as co-owners of a business for profit The contribution of money or services in return for a share of profits creates a presumption that a general partnership exists Regardless of intent

Knock and Announce

An officer must announce their presence, knock and request the door be opened - UNLESS reasonable suspicion that announcement would curtail police efforts (threat of physical harm, destruction of evidence, escape, futility)

Public Employment: Association

An individual may not be punished or deprived of public employment for political association UNLESS (1) she is an ACTIVE member of a subversive organization; AND (2) such membership is with knowledge of the ILLEGAL aims of the organization; AND (3) she has a specific INTENT TO FURTHER those illegal ends (violent overthrow of the government)

Intrusion Upon Seclusion

An intentional intrusion, on the solitude or seclusion of another, that would be highly offensive to a reasonable person

Unilateral Contract

An offer expressly requires performance as the ONLY possible method of acceptance - No actual K until performance is complete - No withdrawing offer once performance has begun

Wills: Multiple Docs

Analyze each document: (i) Begin with earliest (ii) when is each effective? (iii) when was each revoked? (iv) has any been revived?

Corporate Voting: Logistics

Annual Meeting vs. Special Meeting - Annual: required (if none in 15 mos. can petition court); to elect directors - Special: Can be called by (i) board (ii) President, (iii) Principal Holders (not to remove officer bcse SH can't do that) (iv) ANYONE else authorized in bylaws

Right of Publicity

Appropriation, of a celebrity's name or identity, for commercial purposes

Service of Additional Docs

Answers, pleadings, discovery docs, etc. - Can be done by mail (must add 3 days for any required response), email if other party consents

SMJ: Complete Diversity

Any P is not a citizen of AY D (citizens of different states AND U.S. Citizen vs. Foreign citizen) PLUS Minimum Amount in Controversy (must exceed $75k + .00001)

Evidence: Choice of Law

Any action in fed court based on diversity jurisdiction where state law applied, MUST apply: (i) privilege, (ii) competency and (iii) burden of proof and presumtion law of the state (all other fed action use FRE)

Work Product

Any documentation created in anticipation of litigation, by either PARTY or ATTY; NOT absolute (qualified: opposing party can obtain IF compelling need (hardship, unavailability, no other practical way to obtain)

Impeachment: Hearsay DT

Any impeachment method that may be used to attack credibility of a hearsay DT whose statement was admitted into evidence (IF prior inconsistent statement: the usual requirement that DT must be given opp to explain is waived)

Hearsay

Any out of court statement of a person AND offered to prove the TRUTH OF THE MATTER ASSERTED in the statement - Out of court: even if made by the W, cannot testify about it later - Statement: some intent to assert a fact (oral, written, head nod, email, etc.) - Person: Declarant: person making statement - ALWAYS INADMISSIBLE UNLESS an exception or exclusion applies

Impeachment: Bias/Interest/Motive

Any reason to show favoritism or hostility towards a party; have to confront while W still on the stand; CAN use extrinsic evidence

Trustee

Anyone over 18 with capacity - Can be chosen r appointed by court - Can decline BUT to quit, must obtain court approval and give an accounting - Does NOT own the trust (settlor owns) T carries out S's intent

Impeachment: Sensory Deficiencies

Anything that could affect a W's perceptions or memory (i.e. consumption of alcohol, bad eyesight, mental retardation) - Confrontation not required; CAN use extrinsic evidence

Miranda

Anytime after arrest BUT before a custodial interrogation

Bill of Rights

Applies directly to federal government Applied to States through Due Process Clause of 14th Amendment -Exceptions: 3rd: right to not have soldier quartered in house; 5th right to grand jury in civil cases; 8th right against excessive fines

Article 9

Applies to ANY transaction, regardless of its form, that creates a sec int (EVEN if not mentioned AS LONG AS it creates a sec int) in: 1. Personal prop or fixtures by K 2. An agricultural lien 3. Sale of accounts, chattel paper, payment intangible, promissory note 4. Certain consignments 5. A sec sale disguised as a lease - True lease: Intention is to get item back with meaningful value - Sale: intention is for buyer to drain all economic value (or lessee bound to purchase/renew at end of lease)

Governmental Interest Analysis Approach

Approach to choice of law: - Assume that the forum will apply its own law - If party requests, forum will examine its own interest and interest of any other state involved and determine which of 4 categories the conflict fits in: (1) False Conflict: only one state has an interest in having law applied (apply that one) (2) True Conflict: 2 or more states involved have an int and one is forum state (argue both but always apply forum state on bar) (3) Disinterested Forum Case: 2 or more have int AND forum is NOT one of them (Either: apply law closest to forum state OR apply "better" law; CANNOT apply forum law because forum has no interest) (4) Unprovided-For Case: No state has an int in applying its own law (apply forum law)

Judicial Power

Article III gives ceiling of federal court, Congress cannot expand SC's jurisdiction SC may review: non-discretionary, ministerial actions of Executive AND acts of Congress to determine constitutionality

Wills: Divorce/Annulment

As if spouse were dead UNLESS remarried person - Decree of separation is NOT a divorce and has no effect UNLESS agreement expresses otherwise in terms - Revokes: ANY revocable Power of Appointment/Disposition or appointment of property/Nomination as fiduciary or representative - Severs interest of former spouse in property held as joint tenants or community property at time of divorce

Supplemental Jurisdiction

Assess EVERY SINGLE CLAIM INDEPENDENTLY - MUST have a case ALREADY in federal court (FQ or diversity) AND the additional claim (w/o FQ or diversity) MUST arise from the same transaction or occurrence (T/O) as the underlying claim - CAN use to overcome amount in controversy (aggregation) - CANNOT use to create diversity - Court can refuse if FQ is dismissed early in proceedings OR state law is too complex/predominant (rare) - Consider: (i.) are issues of fact/law largely the same (ii) would res judicata bar subs. claim (iii) substantially same evidence to support/refute both, (iv) logical relationship?

Financing Statement: Filing Location

As required by Article 9 (typically Sec of State) OR County Real Estate Records (mortgage, fixtures, timber, extracted collateral) - Multiple state transactions: file where D is located (Individual: principal place of residence; Organization: where organized (not princ place of business); unregistered org. (i.e. partnerships): at place of business/place of chief executive offices - Move: (1) D moves: SP becomes unperfected 4 mos. after D's move UNLESS files FS in new jurisdiction BEFORE 4 mos. is up (2) Collateral moves: SP becomes unperfected UNLESS files in new jurisdiction w/in one year

Assignment of Rights: Implied Warranties

Assignment for consideration: Assignor warrants (i) right assigned actually exists (ii) right assigned is not subject to any, then existing, defense by the obligor, and (iii) Assignor will do nothing after assignment to impair the value of the assignment - Does NOT warrant what Obligor will do after assignment

Strict Liability Defenses

Assumption of Risk Adequate warning

Effective Counsel

At all critical stages of prosecution - Must be deficient performance by counsel AND reasonable probability that the results of the proceeding would have been different without (specify errors, not vague allegations)

Landlord: Duty to Deliver Possession

At start of lease period (minority: only provide with legal possession) (majority: provide legal AND actual possession, if breached T can recover damages)

Marketable Title Doctrine

At time of last payment (usually closing): Title MUST be reasonably free from doubt of ts validity (free from lawsuits and threat of litigation); does not need to be perfect (if reasonable prudent purchaser would pay fair market value) UNmarketable IF: (i) adverse possession (interest is less than purported to sell) (ii) Title is Subject to Encumbrances (an interest in land other than freehold that reduces the value or restricts use: mortgage, easement, covenant, lien, waiver) (iii) zoning violations (existing zoning VIOLATION: not just a zoning restriction; must not be easily curable) - Buyer MUST give seller notice and reasonable amount of time (i.e. 2 months) to cure (unless time of essence)

Duty: Landowner Minor trespasser

Attractive nuisance: owner knows/should know young children are likely to trespass, knows/should know condition exists and involves an unreasonable risk of bodily harm to young children, child because of youth either does not discover or understand the danger

Non-Parental Custodial Rights

BIC BUT STRONG presumption that BIC if to stay with parent - Generally ONLY if parent is UNFIT

Contracts: consideration

Bargain and legal value (adequacy of consideration not relevant) - Bargained-for-exchange: promise, performance, forbearance (must induce promisor to make promise); - Bilateral (promise in return for promise: subject to illusory promise exception);Unilateral: actual promise or forbearance is required

Brief Stop: Test

Based on ToC, police conduct would lead a reasonable person to believe that he is free to leave, MUST be temporary, cannot last longer than is necessary to effectuate the purpose of the stop (PC may arise)

Annulment

Based on facts that existed BEFORE the marriage - Void Grounds (never married): (a) Bigamy (b) Consanguinity (grounds for void CANNOT be waived, marriage CAN be collaterally attacked by 3rd party) - Voidable Grounds (have all rights/responsibilities of marriage until annulled; can be waived): (i) Age (waived by continuing to cohabitate after 18th b-day) (ii) mental incapacity (iii) incurable physical impotence (iv) Duress (v) Fraud (most likely***) - Waiver: by continuing to cohabitate (live together & have sex)

Inventory Searches

Before incarceration of arrestee, police may search: A's personal belongings; entire vehivle

Abortion: Consent

Consent and notification laws are unconstitutional UNLESS for an unmarried minor AND state has an alternative procedure for minor to go before a judge to provide the finding that in child's best interest or she is mature enough to make the decision

Consent

Consent of V is generally no defense (always be leery)

Full Faith & Credit: Family Law********

Consider SMJ and PJ for ALL - 3 different types: Divorce; Support; Custody

Contracts: Interpretation Terms

Consider in order: 1. Express terms 2. Course of performance (same people, same acts) 3. Course of dealing (same people but different, similar contract) 4. Usage 5. Usage of trade

Assault: reasonable apprehension

Must be a reasonable belief that D is capable of carrying out the threat - Do not have to be scared or intimidated, just un-permitted contact Apparent ability is sufficient - I.e. pointed gun is not loaded

Prenups:

Can include anything - Formal Requirements: writing, signed by both parties (SOF), no consideration (promise to marry sufficient); Modifications: in writing, signed by both - Substantive Requirements: Limitations on ability to contest (ONLY if (i) Product of Fraud or Duress; (ii) Unconscionable: MUST (a) wealthier party did not disclose assets; AND (b) poorer party did not waive disclosure AND (c) poorer party did not have independent knowledge of the assets) - Consider: did both have an atty; respective levels of business/finance knowledge; poorer party's understanding of rights forfeited

Appeals

Can only appeal from final judgments (generally NOT interlocutory orders UNLESS (i) completely determined a disputed question, (ii) resolves an important issue complete separate from the merits of the action (too important to be denied, (iii) be effectively reviewable on appeal from final judgment)

Free Speech: Symbolic Speech

Can regulate conduct that communicates IF it has an important interest unrelated to the suppression of the message AND the impact on the communication is no greater than necessary to achieve gov't purpose - Allowed: flag burning, anonymous speech - Not allowed: draft card burning, cross burning with intent to threaten

Free Speech: License

Can require a license IF there is an important reason AND clear criteria leaving almost no discretion for licensing authority - MUST have procedural safeguards

Warrant: Impounded Vehicles

Can search impounded vehicles without a warrant INCLUDING opening all containers MUST be impounded for valid reason (almost all are valid), only done for purpose of protecting D's property and/or police from property claims, cannot be a pretext for a search for incriminating evidence (pursuant to written or unwritten standard policy/ good faith)

Evidence: Insurance

Cannot introduce ev. that D has liability ins. to show negligence/wrongful fault CAN use for impeach, prejudice, bias, ownership, control (ONLY if the issue is disputed by D)

Securities Exchange Act

Cannot make an untrue statement of material fact OR omit to state a material fact (a reasonable person would attach importance to the fact in determining his choice of action) - Anyone who has access, directly or indirectly, to information intended to be available ONLY for a corporate purpose and not for the personal benefit for anyone (officers, directors, holder of more than 10% shares) - During the period of non-disclosure, deal personally in corp.'s securities OR give outsiders confidential information not generally available to ALL corp.'s SHs AND public at large - Must have intent to deceive (can be recklessness)

Privilege Against Compelled Testimony: Prosecution

Cannot make negative comments about D's failure to testify or on a D choosing to remain silent after receiving Miranda UNLESS comment on D's failure to take the stand IS in response to D's counsel assertion that D was not able to explain his side AND IF suspect chooses to remain silent prior to receiving Miranda rights IF P violates rule: apply Harmless Error Test

Evidence: Compromise Offers and Negotiations

Cannot use any evidence of statements OR offers made in regards to a disputed claim (for either criminal and civil) - ALL parties (not even your own statement/offer - Dispute: was it disputed at THAT time ("yeah it was my fault but you're gonna have to sue me"- NOT a dispute) - Claim: was there formal compromise negotiations/conduct/statements/offer and acceptance/counsel - CAN use for bias, undue delay, criminal (ONLY if made to some regulatory office (i.e. we cooked the books" to the SEC) NOT for validity/amount/impeachment (prior consistent statement)

Trustee: Creation

Capacity; Intention (determined through language), Definite/Ascertainable Beneficiary; Duties (no duties: no trust (passive trust), must owe duties to somebody)

Ripeness

Case is ready to be heard (watch for declaratory judgment- seeking pre-enforcement review) Determine whether the case is premature for the court to decide, no further need for factual development

Equitable Servitude: Defenses

Changed conditions: the change is SO pervasive that the whole area has changed; entire area's central character has changed SO much that it can never be returned (not just mere pockets of change)

Pleadings: Cross-claim

Claim against a co-party (D against D; once D2 joined can counter against P) - MUST arise from same T/O as underlying action - ALWAYS permissive, do not have to file - May include indemnity claim

SMJ: Federal Question

Claim arises under federal law (i) well "pleaded complaint" rule (not enough that SOME fed issue is raised by the complaint; P's claim MUST ITSELF arise from fed law) - Is the P enforcing a federal right? (don't need to consider diversity or amount)

Survival Actions

Claim that survives P's death, estate can recover, only for tangible personal interests, Damages: what P could have recovered, Defenses: whatever could have been used against P

Wills: Rule of Conveniens

Class is closed at the time some class member is entitled to receive from the estate (upon death or some other qualifying event)

Necessary

Closely tailored to effectuate a compelling state interest

Partnership: Dissolution At-Will

Commencement of the winding up process. Without an Agreement: a general partnership dissolves upon notice of the express will of ANY partner to dissociate

State Regulation of Interstate Commerce: Commerce Clause vs. P&I

Commerce Clause: discrimination that burdens commerce MUST either: (i) Not compete w applicable fed regulation, (ii) further an important non-economical state interest AND least restrictive, (iii) involve govt action in performance of traditional govt function (i.e. waste disposal), OR (iv) govt is a marketplace participant (buying, selling, building, labor) - Law is burden on commerce P&I: if state action denies the out-of-state person important economic interests (i.e. livelihood) OR civil liberties, it MUST have a substantial justification and be least restrictive - Law is discriminatory in nature - Stronger but more narrow

Honorary Trusts

Commonly established for benefit of pets OR maintenance of burial grounds - Trustee is "on her honor" to carry out its terms - Trust is enforceable by someone named in the trust instrument or named by the court - Property ay be applied only to carry out the terms of the trust with ANY excess property distributed to S or his successors unless provided otherwise - Duration: For care of animals (terminates at animal's death); otherwise, absent special statutes, usually apply RAP and void, if not void it still may NOT be enforced for more than 21 years

LLC: Limited Life

Company dissolves upon unanimous consent of members OR automatically as provided in the operating agreement

Right to Refuse Medical Treatment

Competent adults have the right (even life saving treatment); State may require clear and convincing evidence that a person wanted to terminate treatment before it ends; may prevent family member from terminating treatment of another

Evidence: Writings

Concerns: Authentication, Best Evidence, Hearsay - Documents: ANY writing, recording, x-ray, photo, film - Must be authenticated - Do not generally need testimony (just admitted)

Criminal Jurisdiction

Conduct occurred in the state OR result happened in the state (shoot gun from one state to another (both have jurisdiction)

Kidnapping

Confinement of a person with either some movement (asportation) OR concealment in a secret place

Delegation of Power

Congress MAY delegate tasks of implementing its laws to govt agencies/branches (broad) - CANNOT delegate too much power - MUST allow Congress to indirectly monitor an area - VALID if: (1) C passes enabling legislation (state or federal); (ii) C specifies the purpose, functions and powers of the agency; (iii) C described the procedure of the agency

Federal Property Power

Congress has PLENARY power to dispose of the territory or other property belonging to the US - pretty much free to do anything

Appointment of Executive Officials

Congress may NEVER appoint principle officers BUT may delegate appointment of inferior officers Principle: Appointed by Pres. with advice and consent of Congress Inferior: appointed in accordance to Congressional delegation

Equal Protection: Individual Liberties

Congress may apply constitutional norms to private conduct ONLY if -Commerce clause: may prohibit private racial discrimination in activities that might has a substantial effect on interstate commerce - Significant state involvement: state affirmative FACILITATE, ENCOURAGE, or AUTHORIZE acts of discrimination by its citizens (enforcing Ks, selling/leasing property, act of state official) - Public function exception (private entity performing a task traditionally done exclusively by government) - NOT mere acquiescence by state

Legislative Power

Congress's authority to act: - There must be express or implied Congressional power (no general federal police power UNLESS acting for the military, Indian reservations, federal lands and territories, and D.C)

Treaty

Congressional Power in foreign affairs - Congress has power to approve, negotiated by pres. and ratified by Congress 2/3 - Binding on the US - NOT subject to judicial review Conflict - Treaty v. Statute: last imposed wins - Treaty v. Constitution: Const. wins

Actus Reus: Voluntary

Conscious product of your own volition (thoughts alone are not sufficient) NOT: Reflexive or convulsive act (being pushed, seizure); an act performed while unconscious or asleep

Mens Rea: Recklessly

Consciously disregarding a substantial unjustifiable risk; gross deviation from the standard of conduct that a law abiding person would observe in the situation (drag racing)

Invasion of Privacy: Defenses

Consent Absolute Privilege

Procedural Due Process: Additional

Corporal Punishment: No DP Custody: DP required before termination Punitive Damages: not grossly excessive Non-citizen enemy combatant: must be accorded DP Government seizure of assets: DP must have notice and hearing, unless involves illegal activity (even if owner is innocent)

Inherent Agency Power

Corporate officers generally carry the power to bind the corp. to contracts in the ordinary course of business (I.e. CEO)

Wills: Codicil

Correctly executed amendment to Will - Requires: same as execution - Inconsistent statements btwn will and codicil: later doc controls and revokes inconsistencies

Pleadings: Subsequent Claims

Counterclaim (analyze for jurisdiction: FQ, supplemental) - Claim against opposing party (D against P) 1. Compulsory Counterclaim: MUST be part of answer or waived; arise out of same T/O as P's claim 2. Permissive Counterclaim: separate claim, may include in answer OR file an independent suit

Venue: Forum Non Conveniens

Court dismisses the case because transfer of venue is impossible (foreign court is appropriate venue) - RARE: especially if P is resident of current forum - Alternate court MUST be available AND adequate (not big, same recovery, just adequate to hear claim)

Inter Vivos Trusts

Created by transfer of property to another as trustee - Present intent MUST be manifested by delivery (conduct) can be actual, constructive or symbolic - Placing property out of the settlor's control - MUST be irrevocable (delivery with intent to transfer legal title) - Res Requirement: MUST be specific interest in the property o which the trustee's duties relate, so that a beneficiary who is dissatisfied w T's performance can say "you're not doing your job right" - T must know what prop they are managing - B must know what prop they have an interest in - MUST be specific prop, identified or segregated

Tenancy at Sufferance

Created when T has WRONGFULLY held over past the expiration of lease; L can either; (i) treat T as a TRESPASSER and sue for damages (rent) and possession OR (ii) impose a new Periodic Tenancy on the Holdover Tenant (L CAN charge higher rent IF told tenant of change BEFORE the expiration of the old lease)

Right to Counsel: 6th

Created when formal proceeding begins - Offense specific (counsel needs to be present if being asked about the specific issue for which counsel is retained)

Mens Rea

Criminal Intent Purposely; Knowingly; Reckless; Negligently

Evidence: Rape/Molestation

Criminal and Civil: MAY admit evidence of prior sexual assault or child molestation to show propensity; NO opinion/reputation ev. ONLY specific acts (prior rape (in rape case) or prior molestation)

Impeachment: Contradiction

Cross examiner, through confrontation, may try to obtain admission that W made a mistake/lie about ANY fact testified to during direct, if W admits lie/mistake then W is impeached by contradiction BUT NO extrinsic evidence allowed IF the fact at issue is NOT central to the case (not relevant to case or W's credibility)

Non-Hearsay: Prior statement by DTW

Cross-examination AND statement is: ((i) Inconsistent with DTW's testimony AND was given under oath, subj. to perjury OR (ii) Consistent: offered to REBUT a charge of recent fabrication and prior statement was made BEFORE motive to lie arose OR (iii) Prior identification of a person

Custodial Interrogation

Custodial: A reasonable person under those circumstances would not feel free to leave (objective), need not be at police station, not routine traffic stops or parole/probation reviews Interrogation: Any word or action the police know/should know is likely to elicit an incriminating response NOT for a spontaneous statement

Corporate Suit: Director Liability

D s presumed to have concurred w what Board did UNLESS: objection noted in writing in corp. record (**Writing in minutes OR delivered in writing to presiding officer at meeting OR written dissent to corp. IMMEDIATELY after the meeting) - EXCEPTIONS: Absent D (not liable if not in attendance at meeting) (ii) God Faith reliance on information (including financial info) presented by an officer, employee or committee reasonably believed competent (usually in cases of improper distributions) - Indemnification from Corp.*****: (i) BARRED from indemnification IF held liable to corp. or held to have received an improper personal benefit (ii) MANDATED indemnity IF D is successful of defending on merits or otherwise wins judgment in case (iii) PERMISSIVE if not either of above (i.e. settled) AND can show actions were in good faith and corp.'s best interest (determined by disinterested Ds or disinterested SHs or Independent legal counsel

Traditional Contributory Negligence

D has burden of proof to show P's negligence contributed. Complete defense, bars any recovery. Unless D had last clear chance (i.e. hit brakes)

Willful Blindness

D has knowledge if they have a probability of the existence of culpability

Right to Self-Representation

D has the right to defend himself as long as his waiver is knowing and intelligent AND D is competent to proceed pro se (trial judge's discretion; not same as competent to stand trial)

Character Evidence: Exceptions Homicide

D may introduce evidence of ANY kind to show that V was the first aggressor BUT opens the door and P may rebut with evidence of P's peacefulness AND that D has same character trait **Watch for: D testifies that he didn't do it but does NOT call a character W (No character W= No open door); can impeach D on truthfulness but NOT character

False Pretenses

D persuades owner of prop to convey title by pretense (false representation) Tips: conveyance of title is the center issue; false representation could be as to present or past (NOT future)

Necessity

D reasonably believed the conduct was necessary to avoid an imminent and greater societal harm (objective, good faith belief) Limitations: Death (never justified); Fault(D without fault in creating emergency)

Defense of Others

D reasonably believes that the person assisted would have had the right to defend self; only force other could have used Maj. need no special relationship between D and V

Financing Statement: Name

D's name (depending on D's status: individual, corp., partnership) - Name on unexpired drivers lic. OR name commonly known in community NOT trade name - Name Change: If becomes seriously misleading (FS valid against all PAST collateral and all acquired w/in 4 months of change) UNLESS file an AMENDED FS in that time (only applies to after acquired property) - If file new FS perfection (on newly acquired) begins at that filing date

Entrapment

Valid ONLY if criminal design originated with law enforcement officers AND D must not have been predisposed to commit the crime (watch for undercover police- always discuss entrapment but usually invalid)

Hearsay Exception: Prior Testimony

DT is unavailable; prior statement given at trial, hearing, deposition (NOT grand jury) - Criminal: opposition had opportunity to cross, D can use grand jury testimony against prosecution - Civil: issue in prior proceeding must be essentially the same, same D who had opportunity to cross

Equal Protection: Types

De Jure: Discriminatory "on its face" or "as a matter of law" (i.e. blacks shall go to..) De Facto: Discriminatory "in fact" or "in application" (must have license but only certain groups can get licenses)- must show discriminatory impact AND discriminatory intent

Freedom of Association

Gov't cannot punish group membership (strict scrutiny) - Must show: actively affiliated with group, knowing group's illegal activities, AND with specific intent to further those illegal activities _ Required disclosure of membership (strict scrutiny)

Duress

Defense to all crimes except homicide 3 elements 1. An immediate threat (of death or serious bodily injury to self or others- veiled threat of future unspecified harm not sufficient) 2. Belief is reasonable 3. No reasonable opportunity to escape the threatened harm

Procedural Due Process: Property

Deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled

Hearsay Exception: Present Sense Impression

Describes or explains an event while DT was perceiving it OR immediately thereafter - DT had no time to fabricate Analyze: when was it said? (how close in time to event?) What was it describing? ( events occurring or event that had occurred)

Intent

Desire or purpose Substantial certainty (Knowledge or Recklessness)

Standing

Determination of whether a particular person is the proper party to present a particular issue to the court for determination - Congress CANNOT create standing where it does not exist

Joinder: Procedure

Determine (1) Who needs to be joined (P, D, A) (2) Is joinder feasible (is there PJ over party, effect on diversity) (3) Feasible: bring party in (4) Not feasible (unlikely): either proceed w/o if permissive OR dismiss entire case if indispensible

Contract: Intent

Determined Objectively (NOT determined subjectively or solely on the part of one party)- consider objective facts interpreted by a reasonable person - Objective facts: 1. What a party said when entering 2. Party's conduct 3. Circs surrounding transaction

Choice of Law: Domicile

Determines: (1) Intestate succession (2) Which state gets estate taxes (3) SMJ jurisdiction for a divorce

Property: terms

Devise: to leave by will Devisable: Can pass through will Intestate: No will Descendible: Pass by statutes of intestacy Seisin: Possession of land Vested remainder: someone who is born and ready to take

Choice of Law: Constitutional Provisions

Due Process & Full Faith and Credit: Test: - Significant, contact, giving, legitimate, interest: IF meets test then THAT state's law can be applied - 2 situations do NOT meet test (forum shopping): (1) P moves to state after event which causes ONLY contact with that state AND (2) ONLY contact with parties or litigation is that the suit is brought in that state *******IF NOT those two: assume it meets significance test

Corporations: Director's Duty

Duties of Care, Loyalty AND Good Faith - Required to disclose FULLY all material information w/in board's control WHEN it seeks SH action AND when directors disseminate info to SHs even when no SH action is sought Breach requires: MUST have manipulation AND deception; an inherent unfairness involved where one takes advantage of info intended to be available only for corp. purpose

A's Duties to P

Duty of Care Obey Reasonable Instruction Loyalty (no self dealing, usurping P's opportunity or secret profits)

Negligence

Duty, breach, causation, damages

Custodial factors; BIC

EVERY Fact Provided (don't need to add) 1. Wishes of parties 2. Child over age of 12 (wishes of child) 3. Parent's fitness/ability to provide emotional, intellectual, psychological development 4. Length and quality of time preexisting custody arrangement 5. Quality of parent's home environment 6. Length of current arrangement 7. Relative fitness/ability 8. Bond 9. ANYTHING ELSE that seems relevant 10. NOT GENDER

Co-Tenants: Possession

Each co-tenant is entitled to possess the whole- not obligated to account for his own personal use UNLESS attempts to oust other OR exploits land in some manner that would permanently depreciate the land - Ouster: (i) an attempt to claim adverse possession by one (ii) One tenant wrongfully excludes another co-tenant from possession of the whole or any part (can seek an action in ejectment) - No waste: co-tenant can bring action

Partnership: Liability

Each individual partner is liable for ALL debts AND obligations of the P AND for each co-partner's torts

Easement: Repairs

Easement holder has duty to make repairs if he/she is the sole user (if both use then court will apportion costs; S has right to use land in any way as long as it does not interfere with performance of easement

Trespass to Chattel: Interfere

Effect the condition, quality, value OR loss of use

Wills: Homestead Allowance

Elective share: - surviving spouse entitled to $15k from estate - If NO surviving spouse, then divided evenly between dependents - EXEMPT from ALL other priority against the estate (Except administrative costs) - Chargeable to ANY benefit or share that passes to the surviving spouse or dependent

Hearsay Exception: Dying Declaration

Elements: (i) statement made in DT's belief of impending and certain death (subjectively believed death was imminent) (ii) concerning the cause or surrounding circumstances of DT's death (iii) DT is unavailable (ONLY in homicide or civil proceedings) - ONLY for homicide or civil - ONLY if NOT testimonial

Free Speech: Obscenity

Elements: Average person would find that work (i) appeals to the prurient interest (community standard), (ii) is patently offensive under the law prohibiting obscenity, AND (iii) the work, taken as a whole, lacks serious literary, artistic, political or scientific value (national standard) - Standard varies: (i) minors: may have additional restrictions on sale/distribution (ii) child pornography (a) visual depictions (ALWAYS prohibited) (ii) simulated depictions (NOT prohibited) - Land Use Regulations: may limit location and size of establishment IF reg is designed to reduce the secondary effects of the business (i.e. crime, prop value) may NOT ban altogether - Liquor Regulation: 21st A, states have broad power to regulate, speech relating to this power NOT Unconstitutional UNLESS irrational - Private possession of material: In the home CANNOT be punished UNLESS child

Vicarious Liability

Employer is liable for torts committed by employee when committed within the scope of employment

Duty: landowner invitee

Enters with consent, for purpose connected with business (includes public officials) Highest duty: exercise reasonable care in maintaining the premises, inspect and repair, warn against known, not obvious dangers

14th Amendment

Equal Protection: applies ONLY to states Prevents states from depriving any person of life, liberty or property without due process

Divorce: Property Division******

Equitable Distribution: - 2 steps: (1) CATEGORIZE the Assets****: - 3 types (i) H's separate property (ii) W's separate property (iii) Martial Assets - Separate Prop: (i) items owned before marriage (ii) gifts or inheritance in sole name of spouse (iii) appreciation in value of above items - Marital property: Anything else that comes after marriage, regardless of who owned it (ii) any commingled assets (2) DISTRIBUTE assets: - Court will distribute equitably (try to do what is fair): analyze ALL facts (don't mention if not there) - Who will need it more (age/health, Separate prop of each (who needs more); education/earning capacity; custodian of minor children; duration of marriage; DO NOT CONSIDER fault) - once order is final it is NOT subject to modification

Quasi Contract

Equitable remedy: contract laws do not apply - Consideration and SOF do not apply - Created by court - Tip: Anytime a K is not fair, discuss quasi K as possible remedy

Religious Clauses

Establishment Clause Free Exercise Clause

Character Evidence

Ev. that refers to a person's general propensity or disposition (i.e. honesty, fairness, peacefulness, violence) - NOT admissible in criminal cases, rare in civil

Evidence: Similar Occurrence

Evidence concerns some OTHER time, event or person other than those involved in the case at hand is INADMISSIBLE (as character evidence)

Fruit of Poisonous Tree

Evidence from unlawful seizures or forced confessions is not admissible (proceeds from that evidence are also not admissible)

Relevance:

Evidence is relevant IF it has ANY tendency to make a material fact more or less probable than would be the case without it (1) Materiality: whether the disputed fact is at issue in the case (2) Probativeness: whether the evidence makes the existence of the fact more or less probable than it would be without the evidence ALL relevant evidence IS admissible UNLESS: - Subj. to statutory limits OR probative value is outweighed by pragmatic considerations

Exclusionary Rule: Causation Limits

Evidence obtained in violation may be used if: - Independent Source: evidence gained through an ind source as well as tainted source - Good faith error: officer has reason to believe there is a reasonable basis for the search or Miranda does not apply - Inevitable discovery: Preponderance of the evidence shows that it would have been discovered inevitably by lawful means

Executive Privilege

Evoking Exec. Priv. is an inherent power - NOT an absolute power - Weigh: criminal court need to ensure justice is done against need to keep matters private

Grand Juries

Exclusion rule does NOT apply; W may be compelled to testify based on illegally seized evidence Proceedings are secret D has no right to attend, send witnesses

Negligence: breach

Failed to use reasonable care to avoid harm

Mens Rea: Negligently

Fails to be aware of, substantial and unjustifiable, risk: should have known

Strict Products Liability: defective warning

Failure or inadequate warning; risk is known or knowable at time of production/distribution

Intentional Torts (FB ATTIC)

False Imprisonment Battery Assault - always one or the other, not both, if two, battery Trespass to land Trespass to chattel IIED Conversion

Pretrial Conf.******

Final pretrial conf. determines issues to be tried and evidence to be proffered; recorded in pretrial conf. order; road-map to ALL issues to be tried, evidence to be used, witnesses to be called; NO surprises at trial

Defeasible Fees******

Fee simple estates that can be terminated upon the happening of some event (uncertain or potentially infinite duration) 1. Fee Simple Determinable 2. Fee Simple Subject to Condition Subsequent 3. Fee Simple Subject to an Executory interest

Partnership: Duties

Fiduciary Duties to each other and to P, including Loyalty and Due Care Loyalty: limited to account to P and hold as trustee, refrain from dealing with P in conduct with an adverse interest, refrain from competing before dissolution Due Care: Refrain from engaging in grossly negligent or reckless conduct, or a knowing violation of the law, discharge duties consistent with the obligation of good faith and fair dealing Merely furthering partner's own interest is not sufficient for violation of duty

Corporations: Majority SH Duty

Fiduciary Duty to minority SHs - Duty to not let personal interests override interests of all SHs - Must exercise good faith and fairness

Agent Contracts: elements

Fiduciary relationship with a manifestation of consent by P to A that A shall act on P's behalf and subject to P's control

SOF: K modification

If K with the alleged change is within SOF then modification must also be in writing - Common law: REGARDLESS of express terms in K - UCC: can be waived in terms

Priority: Unperfected vs. Unperfected

First to attach

Priority: SP vs. SP

First to file OR perfect (regardless of knowledge of other party's interest

Fixtures Doctrine

Fixture: (objective intent to improve realty- subjective intentions are IRRELEVANT) fixtures pass with the land - When T removes a fixture, T commits voluntary waste no matter if T installed it - T's installation a fixture? (express agreements control; In absence of agreement: T may remove chattel IF removal does NOT cause substantial harm to the premises)

Exigent Circumstances

Fleeting evidence - hot pursuit: escape set in motion in a public place, subj. pursued into home (anyone's) any evidence in plain sight can be seized - Not blood sample UNLESS only practical to do so

Wills: Jurisdiction

For a will to be valid for disposition it: 1. Common Law: must comply with law of state of domicile at death 2. UPC/Majority: ONLY must comply with law either: State where it was; place of domicile at execution; executed; OR domicile at death

Foreign Corporations

Foreign Corps. transacting business in the state MUST qualify and pay prescribed fees (NOT foreign countries: ANYTHING outside of the state) - Business:the regular course of intrastate (NOT interstate) business activity (not occasional or sporadic; not simply owning property) - MUST qualify

Establishment Clause: Neutrality

Formal: Does not use religion as a category (i.e. minors cannot drink alcohol) Substantive: Neither encourages/discourages religious beliefs (i.e. minors cannot drink alcohol except in religious ceremonies)

Register Limited Liability Partnership (RLLP)

Formation: statement of qualification and annual reports - NO partner is liable for the obligations of the partnership

Embezzlement

Fraudulent conversion of property of another; do NOT need to carry away (just unlawful possession); does not have to get the benefit (i.e. donate to charity) Tips: Embezzler always has lawful possession followed by an illegal conversion; trustee often the E on bar

Title Covenants: Future

Future Covenants: (breached after closing) (SOL does not begin to run until future date) (4) Covenant of Warranty: Promise that G will defend grantee against any claims of superior title (5) Covenant of Quiet Enjoyment: Promise that grantee's possession of the property will not be disturbed by anyone holding superior title (breached ONLY when there is actual or constructive eviction by a paramount holder) (6) Covenant of Further Assurances: Promise that G will take all future steps reasonably necessary to cure defects that existed at closing

LLC: Limited Liquidity

Full membership interest may not be transferred without unanimous consent of all members OR as provided in operating agreement

Due Process: Right

Fundamental Right: Strict Scrutiny No Fundamental Right: Rational relation

Fundamental Right

Fundamental to our scheme of ordered liberty; of such character that cannot be denied without violating the fundamental principles of liberty and justice AND deeply rooted in this nation's history and traditions

Contracts: Mixed Deals

Gen. Rule: All or nothing: whichever is the primary piece of the K, that law applies EXCEPT if K divides payment (Article 2 to goods and common law to everything else)

Impeachment: Criminal Convictions (Time)

Generally within ten years of trial; UNLESS proponent shows the probative value on issue of credibility is substantial

Vicarious Liability: contractor

Generally, employer is not liable for torts committed by an indepedent contractor UNLESS the acts are non-delegable duties (so important employer should not delegate) OR apparent authority in eyes of the community (then person is an employee)

Vicarious Liability: intentional torts

Generally, outside of scope of employment UNLESS authorized by P,natural consequence of nature of employment, motivated by a desire to serve P

Mortgage:

Gives Mortgagor a security interest in land and right to use special remedy if borrower defaults on the loan

Corporation: Preemptive Rights

Gives stock holder right to first dibs o stock (no preemptive rights UNLESS stated in articles) - Right of existing SH to maintain existing percentage of ownership

IIED: Extreme and outrageous act

Goes beyond all possible bounds of decency, atrocious, mere insults are not enough

Security Interest: Accessions

Goods that are physically united with other good in such a manner that the identity of the original goods is not lost (i.e. car vs. car tires) - PMSI rule: financer or accession takes priority if files within 20 days

Eminent Domain

Gov't buys/takes land for public use and provide owner with just compensation 1. Implicit/Regulatory: regulation that, although not intended to be a taking, has the same effect 2. Explicit: governmental condemnation

Fee Simple Subject to Condition Subsequent

Grantor reserves the right to terminate upon the happening of some stated event 1. Creation: same as fee determinable O to A and his heirs "as long as..." BUT with clear durational limits ("but if ___ then..." or "provided that __ and if then...") 2. Distinguishing Characteristics: devisable, descendible, alienable subject to condition (grantor has the right to take) 3. Future Interest: (i) Right to reentry/power of termination (passes to O's heirs) (ii) grantor has the right to terminate (NOT automatically terminated- only at grantor's option IF condition occurs) - SOL: does not begin to run, for adverse possession, until the right is asserted by grantor; grantee's contd. use of land is proper (not hostile)

Mens Rea: Transferred Intent

Homicide, battery, arson

Defense of Property: Reclamation

Hot pursuit doctrine: cannot use force to regain property UNLESS in hot pursuit

Ademption by Extinction

IF T does not own devise at time of death: D doesn't get it - May get $$ IF Specific Devise before T's death is: (i) Sold (get remaining balance from purchaser), (ii) Given away (taking: amount of award unpaid at death); (iii) Destroyed or Lost (any UNPAID ins. award or recovery still owing at death); (iv) Foreclosure (property/proceeds owned as a result) (v) Change in Form (same assets but another co. took over, ie. all Apple stocks but Microsoft took over) receives ALL; (vi) Change in Substance (ie. Microsoft stocks but cashes in and BUYS apple) gets NONE

Land: Lateral Support

IF land is improved by buildings and an adjacent landowner's excavation causes the improved land to cave in: excavator is liable ONLY if negligent No strict liability UNLESS P can show that P's improvements did not play ANY contributory role in collapse

Wills: Murder

INTENTIONAL AND FELONIOUS killing of decedent forfeits all right to inherit - Treated as if predeceased D - Does not have to be convicted ONLY established by a preponderance of evidence

Right of Publicity: name/identity

Identifiability: sufficiently identifies even if not specifically identified, stage or other fictitious names can also be identity

Dependent Relative Revocation (DRR)

If T revokes his will upon a mistaken assumption of law or fact: it is ineffective IF T would not have revoked had the truth been known - Test: Actual intent: T would not have revoked BUT FOR the mistake - Tip: Watch for the amount in the change (if the changer increases the inheritance: apply DRR and give original amount; If change decreases inheritance: discuss but don't apply and give nothing)

Wills: Lapse********

If a devisee does not survive the T: it lapses and fails - Includes simultaneous death - Surviving residuary beneficiaries (take in proportion to their interest in the residue- just throw it in with the rest of the residuary estate) - If the residuary devise lapses, the heirs take by intestacy - Class: ONLY the class members who survive the T take a share unless otherwise specified

Wills: Securities

If devises general legacy of securities AND T then owned securities that meet the description in the will ("all shares in X") then devise includes - Additional securities owned by T at death IF (i) acquired by T after the will, (ii) executed as a result of T's ownership of the described securities, AND (iii) Securities of ANY of the following types: (a) Of same org. acquired by reason initiated by org. (b) Securities of ANOTHER org. acquired as a result of any merger, consolidation, etc. OR (c) Securities of the same org. acquired as a result of a plan of reinvestment

Perfect Tender Rule

If goods or their delivery FAIL to conform to the K in ANY way, the buyer, generally, may reject/accept ALL OR ANY commercial units and reject the rest - Right to reject is cut off by acceptance (keep past a reasonable time to reject, fails to reject, acts inconsistent w rejection) - Substantial performance DOES NOT APPLY

Domicile by Operation of Law

If person lacks capacity (age/mental incompetence) to acquire a domicile of choice: person will be assigned by operation of law - 3 Rules (i) will get domicile of their parent (ii) if parents divorced: will get domicile of the parent who has legal custody (ii) if acquired domicile prior to becoming mentally incompetent, will retain that domicile of choice

Strict Products Liability: Misuse

If reasonably foreseeable then manufacturer has duty to make reasonably safe for that use

Divisible Divorce Doctrine***********

If some part of decree are valid and some parts invalid: keep/enforce valid parts, ignore rest - I.e. had SMJ for divorce but not custody, keep divorce, ignore custody

Peerless Rule

If there is two equally reasonable meanings then there is no meeting of the minds and K is void

Contracts: Illegality

Illegal - Subject Matter: K is not enforceable (K to commit murder) Exceptions: (i) P is unaware of illegal purpose (ii) parties are not in pari delicto (one not as culpable as other); or (iii) illegality is failure to obtain license for money raising purposes - Purpose: if subj. matter is legal then K is voidable by party who was (i) unaware of the purpose, or (ii) aware but did not facilitate the purpose AND purpose did not involve serious moral turpitude

Exclusionary Rule ****

Illegally obtained evidence is inadmissible for case-in-chief BUT can be used for: - impeachment of D's trial testimony - Grand jury proceedings - Some civil proceedings (including those w/ punitive damages, deportation hearings) - Parole revocation proceedings NOT excluded: violations of knock and announce rule

Contracts: Invalid Consideration

Illusory Promise: does not restrict promisor's future right of action; promisor has unfettered discretion to perform/not perform Past consideration (exception: act was done at promisor's request) (2 exceptions: a promise to pay all or part of a debt barred by either SOL OR binding bankruptcy); Moral consideration (love and affection); Pre-existing duty (contractual or statutory- common Law: need new consideration for contract modification; UCC: as long as modification is good faith agreement); Bound through other legal obligations (parent-child)

Assault: imminent

Immediacy required- must be conscious, mere words doctrine

Negative Equitable Servitude

Implied ES, exception to SOF Common Scheme Doctrine: if a developer subdivides land, and some deeds contain negative covenants and others do NOT, the negative covenants are binding on ALL successors, IF there was a common scheme of development AND notice of the covenants (actual, inquiry, notice) - Tip: if scheme arises after some plots are sold, the initial plats are not bound

Trespass to Chattel: Intent

Intent to do act of interference - Mistake is not a defense - I.e. intended to ride the bike (thought it was yours): sufficient intent

Mental State: Malice Crimes

Intent: Reckless disregard Types: Murder (common law and 2nd degree) and Arson

Choice of Law: State Law in Fed Court

In a diversity case: Erie Doctrine

Wills: Exempt Property

In addition to homestead allowance: D's surviving spouse (or if no spouse then split among dependants) is entitled to petition to set aside tangible personal property as exempt from (unperfected) claims against the estate (usually value up to $7k) (i) household furniture, (ii) automobiles, (iii) furnishings, (iv) appliances, (v) personal effects

Assault: crime

Intentional creation, other than by mere words, of a reasonable apprehension of bodily injury or offensive touching (An attempt to commit battery)

Rule Against Perpetuities (RAP)

In order for an interest to be valid, it MUST vest and close, if at all, not later than 21 years after some life in being at creation of the interest (interest is void if there is ANY possibility, no matter how remote, that the interest may vest more than 21 years after some life in being at the time of the creation of interest - 3 vulnerable future interests (i) Contingent Remainders (ii) Vested Subject to Open (iii) Executory interests - Danger signs: (i) condition is not personal to someone, (ii) there is an identified age/time period of more than 21 years (iii) an interest is given to generation after next (i.e. grandchildren) (iv) conveyance requires that a holder survive someone described (not named) (v) identified event might well happen within 21 years BUT MIGHT not (vi) holder won't be identified until the death of someone described (not named)

3rd Party Beneficiaries: Types

Incidental vs. Intended: - Only intended have K rights (consider: (i) is identified in K, (ii) receives performance directly from promisor, (iii) has some relationship with Promisee to indicate intent to benefit) Intended Beneficiaries: Creditor vs. Donee 1. Creditor Beneficiary: (person to whom a debt is owned) - has a right to bring action against promisor 2. Donee: Person promisee intends to benefit gratuitously

Due Process: Burden

Incidental: Not generally sufficient to render unconstitutional; rational review Undue Burden: More than incidental effect on right; substantial barrier or obstacle

False Imprisonment: Confine

Indirectly or directly causes confinement Other must be conscious of the confinement OR injured by it

Trusts: Delivery

Inter vivos trust with 3rd party beneficiary (delivery of subject matter required) No requirement for self-declaration of trust OR testamentary trust

Estoppel by Deed

One who conveys realty in which he has no interest, is estopped from denying the validity of the conveyances IF he later acquires the previously transferred interest (X-A (but O actually owns), later O-X then A owns) BUT if (X-A, O-X, then X-B (A's deed is wild and B owns)

Nuisance: remedies

Injunction (most frequent and/or damages) if P can prove actual monetary loss (rare)

Standing: Elements

Injury: personal injury/harm AND a likelihood of future harm (not black man put in choke-hold by police) Causation: Harm suffered is fairly traceable to D's actions, complained about action DIRECTLY brings about actual or imminent harm Redressibility: A favorable court decision is substantially likely to remedy the harm suffered (cannot extend to all members of a particular group- taxpayers, racial class)

Defenses of Criminal Capacity

Insanity; Intoxication; Infancy; Self Defense; Defense of Others; Defense of Dwelling; Duress; Necessity; Mistake of Fact; Consent; Entrapment

Procedural Due Process: Detention

Institutionalizing an adult MUST be preceded by notice and a hearing Exceptions: Emergency (rebellion or invasion), parent confining child (only requires screening by neutral fact finder), Prisoners (limited)

Mens Rea: Knowingly

Intended and did it knowing it would happen; practically certain (no want/desire); willful blindness (shooting into a crowd)

Security Interest

Interest in personal property or fixtures which secures payment or performance of an obligation - A contingent property interest that D grants to C - Springs to life when D defaults and C has rights to collateral

Nuisance: Public

Interferes with the rights of the community at large, suit brought by the state; Except when individual suffers harm of a different kind then the public at large

Intervening/Superseding Causes

Intervening: no not break the chain of causation, act is normal and foreseeable consequence of situation created by D Superseding: unforeseeable act that breaks the chain, intentional intervening torts, gross negligence, unforeseeable criminal acts

Invasion of Privacy Torts

Intrusion Upon Seclusion Appropriation Public Disclosure of Private Facts False Light

Free Exercise: Actor

Is it the gov't/employer/parent - Gov't cannot force religious employers to hire secular people - Parents can choose where educational monies go (but gov't cannot pay religious teacher's salaries)

Free Exercise: Belief

Is the belief religious or merely philosophical? DO: consider if religion is "sincerely held" Do NOT: consider if practice is consistent with specific church teachings, the importance of the belief, whether the belief is true or reasonable

Free Exercise: Scrutiny

Is the law Generally Applicable Facially Neutral? Yes: rational No: strict

Political Question

Issues that should be addressed though the political process (voting) and not through the courts - Mal apportionment (redistricting, gerrymandering) - Congressional self-governance - Foreign policy - Impeachment and removal

Free Speech: Prior Restraint

Judicial order restraining speech before it occurs: - must meet strict scrutiny, must be complied with, violator is barred from later challenge

Evidence: Adjudicative Facts

Judge take judicial notice when adjudicative facts are not subject to reasonable dispute (generally known) AND capable of accurate and ready determination - Mandatory: requested and provided with no reasonable dispute - Discretionary: not specifically requested, subject to reasonable dispute, neither generally known NOR readily verifiable from reliable source

Priority: SP vs. Judgment Lien Holder

Judgment Lien Holder: lien obtained by judicial proceeding MUST attach to the collateral AND has levied on that judgment Sec Int is subordinate to lien creditor if NOT perfected BEFORE levy by sheriff - IF sec int perfected first: SP has priority - Note: SP w priority int in future advance takes priority in future advance over lien IF advance is made: w/o knowledge of the lien OR w/in 45 days of lien arising

Full Faith & Credit: Sister States

Judgments from Sister States MUST be recognized and enforced IF meet ALL 3 requirements: (1) Valid jurisdiction in rendering court over both parties and the SMJ of the litigation (2) Judgment MUST be final judgment - (not final IF modifiable) BUT will usually be enforced anyway under principles of comity (2 that are not final but enforced under comity: future alimony & future child support BUT judgment for amount already accrued and in arrears are final)- judgments on appeal are NOT final UNLESS rendering state would allow enforcement pending appeal (3) Judgment MUST have been render on the merits (not on procedural issue: i.e. suit barred in sister state because of SOL)

Partnership: Liability by Estoppel

One who represents to a 3rd party that a general P exists will be liable as if a general P exists

Double Jeopardy: Attachment

Jury: when the jury has been sworn in Judge: when first witness sworn in Civil: Does not generally attach

Supreme Court: Justiciability Limits

Justiciability Doctrines: Judicially created limits on what can be heard in federal courts 1. Prohibition Against Advisory Opinions (MUST be an actual dispute) 2. Standing 3. Ripeness 4. Mootness 5. Political Question

Contracts: Misrepresentation

K is voidable by innocent party - Non-fraudulent 1. False Misrepresentation 2. Material Fact (objective: reasonable person) 2. Intention (negligently, innocent: P can only recover for damages) 3. Justifiable Reliance (not if wholly irrational or absurd) (buyer's duty in minimal-good faith) 4. Representation caused K (subjective) - Fraudulent Misrepresentation: Same but need not be material fact BUT must be knowingly and justifiable reliance **matters on bar, not mistake

Murder: 2nd Degree

Killing done with reckless indifference to an unjustifiably high risk to human life (with malice (or implied malice) but NO premeditation) Implied malice: extreme recklessness (extreme idiot) OR murders not classified as 1st degree

Voluntary Manslaughter

Killing in heat of passion w adequate provocation of V; provocation must be one that would arose sudden and intense passion in the mind of an ordinary person such to cause him to lose self-control; NOT sufficient time between the provocation and the killing for the passions or a reasonable person to cool (objective) AND D, in fact, did not cool off between the provocation and the killing (subjective) mens: same as 2nd degree BUT mitigated by heat of passion/adequate provocation OR - Imperfect self-defense: mistake was honest but unreasonable

Mens Rea: Purposely

Knew it was going to happen; wanted it to happen (want/desire)

Extortion

Knowingly seeking to obtain property or services by means of a threat of FUTURE harm (blackmail) - Don't have to take anything from person or in their presence

Doctrine of Part Performance

Land Purchase Contract: SOF Exceptions - Oral K can be enforced IF buyer does any 2/3: (i) takes possession, (ii) pays at least part of purchase price, (iii) makes improvements to property

Duty: Landlord/Tenant

Landlord liable only if knows/should have known at the time of leasing and tenant is not likely to find upon inspection

Choice of Law: Real Property

Law of place where property is located ALWAYS controls on ALL issues

Choice of Law: Personal Property

Law of place where property is located ALWAYS controls on ALL issues - EXCEPT passing of property by intestate succession: place of domicile of D at time of death

Right to Vote

Laws denying rights (strict scrutiny); Cannot require property ownership; use race in drawing election district lines; count uncounted votes in a Presidential election without standards (1) One-person-one-vote: must be met for ALL state and local elections deciding to select representatives by popular election from INDIVIDUAL DISTRICTS & Congressional Elections At Large Elections: Constitutional UNLESS there is proof of discriminatory purpose

Corporation: Licensed Professionals

Lawyers, Medical, CPA's: MAY incorp. as "professional corp." or "professional assoc." but MUST have one of those phrases OT P.C. OR P.A. - Articles MUST state that purpose is to practice in particular profession - ALL professionals MUST be licensed to practice in the profession - Liability: Personal for own malpractice

Directors: Duty of Care***

Lazy or Dumb - D owes Corp. duty to act in good faith AND do what a prudent person would do in regard to their own business (ONLY liable if causes a loss to the corp.) - Breached by either (i) misfeasance****: affirmative action later judged to be inappropriate (dumb); causation is clear (damage to corp.); OR (ii) non-feasance: failure to act when action was necessary (lazy) i.e. failure to adequately oversee officers

Co-conspirator

Liable for all crimes committed in furtherance of the crime AND are foreseeable so long as partnership continues (partners act for each other in carrying it forward) overt act by one is act of all UNLESS the substantive offense is NOT done in furtherance of the conspiracy (not within scope of the unlawful project: ramification that could not be reasonably foreseen as a necessary/natural consequence of the conspiracy)

Partnership: Liability Dissociating Partner

Liable for all debts of P incurred prior to dissociation AND incurred after, until actual notice of dissociation is given to creditors OR 90 days after filing notice of dissociation with the state

Strict Liability: Abnormally Dangerous Activities

Liable for foreseeable harm resulting from the specific risk CRAIG Common usage, activity is not a matter of Risk cannot be eliminated by the exercise of reasonable care Activity involves a high degree of risk Inappropriate to the place Gravity of harm is likely to be great

Defamation: Publication

Libel: permanent (written); Slander (oral) Reasonably communicated and understood to some person other than P Need not believe it

Battery: Person

Liberal construction: Anything connected to the person P can be conscious or unconscious

Larceny by Trick

Like false pretense but ONLY to gain possession (not title)

Covenant vs. Servitude

Look for remedy: Covenant: money damages; Servitude: injunction

Foreclosure: Proceeds

May sell property and use sale proceeds to pay off fees and loan - Order: (i) atty fees, accrued interest on first bank's lien, sale costs,(ii) Mortgages in order of priority (each entitled to full satisfaction) - Proceeds after pay out: Jr. liens, remaining surplus to debtor - Inadequacy: If price at foreclosure is not sufficient mortgagee bring deficiency action against debtor

Default Methods: Resale of Collateral

May sell, lease or otherwise dispose of collateral in its condition when repossessed OR after reasonable preparation (costs come out of proceeds) - Sale: Reasonable Reasonable Reasonable - Commercially Reasonable Sale***: every aspect must be reasonable (method, manner, time, place, terms, notice) Anything fishy: not reasonable (i.e. priceless works of art sold in small town) - Notice to D/sureties/other SPs; not less than 10 days before - may be either private or public - Failure to comply w/ resale requirements: D has right to deficiency judgment (rebuttable presumption that proceeds of sale are equal to debt: clears debt) - Right to redeem: D has right anytime before sale

Corporation: Directors

Members of the Board (must be an adult natural person) - Initially determined in articles, thereafter elected by SHs - Removed by SH vote: need more votes to remove than were required to elect (elected w/ 300 shares: need 301 to remove) -Manage business of corp. (sets policy, supervises officers, declares distributions, determines when stock will be issued, recommends fundamental corp. change to SHs

Solicitation

Merges - Asking someone to commit a crime; completed as soon as asking occurs (solicited crime never occurs- then merges) - Mens Rea: Specific Intent: encourage; entice; induce or counsel another to commit a crime AND intend person commit targeting offense - Actus Reus: asking; commanding; encouraging - Withdrawal: Take actions to affirmatively withdraw OR still liable for any offense (can NEVER withdraw from conspiracy only from crimes in furtherance); Affirmative withdraw: inform police - Defense: legal impossibility; NOT factual impossibility

Attempt

Merges Want to commit crime but fall short Actus: some substantial step in furtherance (more than mere preparation) Mens: specific intent to commit AND an overt act Defense: Legal impossibility (factual impossibility is NO defense); Abandonment: NEVER after a substantial step UNLESS clearly voluntary AND a complete abandonment

Rehabilitation

Methods: 1. Showing W's good character for truthfulness (ONLY when impeachment clearly suggested that W was lying as opposed to merely being mistaken) by use of character W testimony that W has reputation/opinion for truthfulness 2. Prior consistent statement to rebut charge of recent fabrication (If W's testimony is charged as recent fabrication, or as a product of improper influence) a prior statement that is consistent with W's testimony is admissible IF it was made before the motive arose (TIMING is everything)

Evidence: Writings Authentication

Methods: HSS PACK 1. proof of Handwriting: lay W (experience in normal course of affairs; expert: based on comparison btwn docs, jury comparison) 2. Self-authenticating: (no need for foundation) 3. Solicited Reply Doctrine: doc was received in response to a communication to the alleged author (why would someone intercept first and reply) 4. Photo: W may testify on the basis of personal knowledge that the photo is a "fair and accurate representation" of the people or objects portrayed 5. Ancient Documents: over 20 yrs., authenticity established, watch for hearsay within hearsay 6. Circumstantial Evidence: reliance on ev. such as appearance, contents, substance, internal patterns or other distinctive characteristics 7. W personal knowledge: observed and signed

Corporation: Par Value

Minimum Price for which a corp. can issue stock (issuance) - No significance for subsequent resale by SHs (ONLY issuance) - ONLY a floor pricing (not ceiling) - NOT fixed, can be changed by BoD

Res Ispa Loquitor

Multiple Ds had control but can't establish which acted Mere fact that act occurred is evidence of negligence

Joint and Several Liability

Multiple Ds, both the proximate cause, concurrent cause, injury indivisible Each liable for entire injury Right to contribution

Duty: Business

Must adhere to standard of custom

Miranda: Waiver

Must be free and voluntary (understand right being waived) CAN implicitly waive (conduct/ambiguous statement)

Title: Record

Must be recorded in such a manner that a searcher could reasonably find it

Defamation: intentional

Must be some negligence or malice: reckless disregard for the truth (serious doubts is sufficient) Not if unintentionally overheard in private place

Warrants: Execution

Must carryout within the limits described in the warrant - Within time determined by rules/warrant

Search and Seizure: standing

Must demonstrate that D had a legitimate expectation of privacy in the place searched or items seized Automatic: own/lives in dwelling, overnight guests None: things held out to public: sound of voice, handwriting, paint outside car, accounts held by bank, location of car (no GPS locator), open fields, seen flying over in air space, odors from luggage or car, garbage on curb for collection

LLC: formation

Must file: articles of organization (does not exist until filed) May: adopt operating agreement

Intrusion Upon Seclusion: solitude

Must have a reasonable expectation of privacy

Limited Partnership: Formation

Must have published state filing with names of all general partners

Contesting a Will: Undue Influence

Must show (i) influence was exerted (ii) the effect of the influence was to over power the mind and free will of the T, and (iii) the resulting testamentary disposition would not have been executed but for the influence Indicia: T was susceptible to undue influence; Vulnerable to undue influence (state of mind, medical condition, etc.); D was active in procurement; The influence was occurring when the will was being procured; Lack of Independent Advice (Does not have to be a lawyer: Financial adviser, banker, neighbor); Prepared in Secrecy or Haste; Secret (person disinherited doesn't know); Attitudes Changed; Discrepancies; Continuity of Purpose; Unnatural Disposition

Corporation by Estoppel

One who treats a business as a corp. MAY be estopped from denying it is a corp. against a party acting in good faith - Can prevent an improperly formed corp. from avoiding liability by saying it was not properly formed - Applies ONLY in contract law - Statute abolished in many states

Character Evidence: Exceptions

NEVER in criminal (unless D opens the door - Civil: 1. Tort action alleging Negligent Hiring/Entrustment: (has to show that emp. was careless and employer knew 2. Tort Defamation: defamation is about character 3. Child Custody Case 4. Bad character for truthfulness (impeach credibility)

Conspiracy

NO MERGER (can be charged with both conspiracy and substantive crime) Actus: requires: agreement, intent to agree, intent to commit unlawful act, an overt act in furtherance - any little act (preparation is enough) (common law/modern trend: no overt act required); agreement need not be express (inferred from conduct) Mens: specific intent- intent to combine with others and accomplish illegal objective: cannot be implied malice (recklessness) Causation: None required Defense: legal impossibility; factual impossibility NO defense

Full Faith & Credit: Foreign Court

NOT Full Faith & Credit BUT can be recognized and enforced under principles of comity ONLY if: - Jurisdiction was proper (fundamental fairness/minimum contacts) AND Fair procedures used in proceedings - Determined using state's law

Class Actions: Certification

NOT a Class Action until certified by court - MUST define: class; class claims; issues; defenses AND appoint class counsel (that will fairly and adequately represent class interests

Assignment of Rights: Requirements

NOT effective until obligor receives notice of assignment (may continue to perform in accordance with original K); no new consideration needed (but no consideration = gratuitous assignment and CAN be revoked- only gratuitous)

Self-defense

Necessary (imminent threat of harm) AND Proportional (in relation to the harm threatened) Reasonableness: - Non-Deadly: V reasonably believes force is about to be used on him; Deadly: Maj. V reasonably believes force is about to be used on him; Min. V has duty to retreat if safe to do so (except Castle Doctrine) Original Aggressor (self-generated necessity to kill) no defense UNLESS withdraw and communicate the withdraw OR minor incident escalates a minor fight into one involving deadly force without giving aggressor opp to withdraw

Strict Scrutiny

Necessary to achieve a compelling government interest - Compelling: crucial, vital - Relation: actual purpose, not just conceivable - Necessary: least restrictive (no lesser alternative) Burden: Government

No Duty Rule

No duty to come to someone's aid (cannot prevent others, impede someone from seeking)

Right to Education

No fundamental right - Court will examine funding under rational basis standard

Wills: Step-parent

No inheritance UNLESS there is support by estoppel - Good faith reliance to change position to the detriment of parent

Mental State: Strict Liability

No intent crimes: do NOT need mens rea; determined by legislative intent (statute's lack of terms: knowingly, willfully, intentionally) - I.e. selling liquor to minors, statutory rape

Public Disclosure of Private Facts: not public

No legitimate public interest: consider the customs and conventions of the community NOT newsworthy, public record, public act

Contracts: Ambiguity

No manifestation of mutual assent if: 1. Parties attach different meanings to same words 2. Both are reasonable under circs 3. Neither knows or has reason to know 4. Material understanding of material words of an agreement No application when: one party's understanding, because of their fault, is less reasonable

Privilege Against Compelled Testimony: Elimination

No possibility of incrimination - Immunity; Statute of limitations on crime has run; Waiver

Causation: Proximate Cause

No significant, unforeseeable, event intervened between the conduct and the social harm

Warrant: Automobiles

No warrant required if there is probable cause (rid of warrant but not PC requirement), PC may arise after car is stopped - Reasonable belief that driver or passenger pose a risk: may search clothing AND interior of vehicle for weapons - Can have ulterior motive for stop as long as the stop is valid

Lay Person

Non-Expert W - Requires: (1) rationally based on personal observation/perception; helpful to the jury (low standard)- adds info, jurors could not easily draw conclusion, about central aspect of the case- (ii) does NOT rest on scientific, technical or specialized knowledge (was person drunk, speeding, sane)

Contract: Equitable Remedies

Non-monetary: Monetary damages will not compensate P: adequacy of remedy of law; unclean hands; other party's equities 1. Specific Performance: court order demanding party to perform (not for services); look for something unique (land, antiques, art, custom made) 2. Injunctive Relief: Mandatory injunction, prohibitory injunction (prohibits performance) 3. Reclamation from an insolvent Buyer of Goods: get goods back; Must be insolvent at time of receipt of goods AND seller demand return of goods within 10 days of receipt AND buyer still has goods at time of demand

Opinion Testimony

Not objectionable just because it embraces an "ultimate issue" in the case (i.e. DWI case, lay person testifies "X seemed drunk") BUT all other requirements for opinion testimony must be satisfied - including the requirements that the opinion is helpful (ONLY objection is that its NOT helpful)

Contracts: Termination of Offer

Offeror is the maker of the offer (has the right to revoke ANY time prior to acceptance, right to request acceptance be in particular way) - Death/incapacity; revocation; lapse/rejection; counteroffer

RAP: 8 step approach

O to A for life, then to B for life, then to O's Widow 1. Separate different interests (A possessory LE; B vested remainder in LE; Widow contingent remainder in fee simple, O reversion) 2. Identify future interest in grantee (look for remainders and executive interests: B's & W's) 3. Check to see if they are both vested AND close (if contingent or subject to open: Underline) (i.e. underline O's widow) 4. Identify factual developments for vesting and closing (ascertain what event will vest interest; O's widow-O's death) 5. Circle all lives in being at time of conveyance and kill them (O, A and B) 6. Will interest still be contingent open for longer than 21 years? (find validating life 7. If contingent violates rule, strike interest and reclassify title 8. Repeat for all contingent interests

Contracts Clause

ONLY APPLIES TO State/local government - Can ONLY set limits for new/future contracts - Cannot interfere with existing contracts, even if reasonably related to government interests - Must meet intermediate strict scrutiny

Jurisdiction: Removal**********

ONLY Defendants can seek to remove to federal court** (P can NEVER remove) ONLY ONE WAY: from State court to Federal court (if improper: fed court can remand back) - MUST be w/in 30 days of service (NOT filing); if 2Ds then from 30 days of last D's service - ALL Ds MUST agree, cannot remove alone - ONLY when fed court has jurisdiction (FQ/diversity), P could have brought suit there, NOT because of a defense based on a FQ - 2 Exceptions****** (Diversity cases: (1) NO removal if ANY D is a citizen of the forum state) BUT MAY become removable later if that D is dropped, AND (2) NO removal more than one year after case is filed (EVEN if it becomes removable after one year) ******WATCH the dates (i.e. D is removed from case 1 yr later, cannot remove) - P CAN move to remand ANYTIME - Process: file notice of removal in fed court stating grounds for removal; Serve copies to all adverse parties and file copy with state court

Impeachment: Criminal Convictions

ONLY for NON-CHARACTER purposes (MIMIC: Motive, Intent, Mistake, Identity (MO), Common Scheme/Plan (opportunity, crimes directly related to one another- stole car, robbed bank) Conviction of either 1. ANY crime (felony or misdemeanor) that required proof of false statement as an element (Court has NO discretion to exclude) 2. A felony (court may exclude on discretion- danger of unfair prejudice) Method: Confront W about prior conviction (intrinsic) OR introduce record of conviction (extrinsic)

Evidence: Crimes, Wrongs and Other Acts

ONLY for non-character purposes (can't show on a particular occasion a person acted in accordance with a particular character) - CAN use to show other propensity (MIMIC) Motive, Intent, Mistake, Identity (MO or specific knowledge), Common scheme or plan (opportunity, related crimes- i.e. steal car then uses car to rob bank) - P MUST prove other crime occurred (either conviction OR meet conditional relevancy standard: sufficient ev. from which a reasonable juror could conclude D committed the other crime)

Contracts: Intoxication

ONLY if other party has reason to know of BOTH intoxication AND incapacity; SO intoxicated that they could not make an informed decision - Discuss if in facts but usually does not apply

Dead Man Statute

ONLY if statute is mentioned: In a civil action an interested W is incompetent to testify (about communications/transactions btwn interested W and decedentif she has an interest (direct legal stake) in the outcome of against the estate

3rd Party Standing

ONLY when Original P has standing AND There is a sufficiently close relationship (i.e. parent-child) AND Injured party is unlikely to be able to assert his/her own rights Organization on behalf of members: only when above is met AND interests are germane to organization's purpose AND neither claim nor relief requires participation of individual members

Impracticability

ONLY when events subsequent to K formation have rendered the agreement so commercially unreasonable that it would be impracticable to force a party to perform

Contracts: Revocation

Offeree's power of acceptance is terminated when offeree receives manifestation of intent not to enter into proposed contract from offeror (ONLY effective upon receipt/awareness by offeree) - Accomplished through: direct revocation (I withdraw my offer); Indirect revocation (performance of acts: offeree is aware of acts)

Contracts: Death/Incapacity

Offeree's power to accept terminate upon death/incapacity (UNLESS offer is irrevocable or acts have begun)

Actus Reus: Omission

Omission is an act when D fails to act despite: 1. Statutory duty (not filing taxes) 2. Special relationship (spouse/parent) 3. Contractual Duty (babysitter, lifeguard) 4. Assumption of duty and seclusion then fail to adequately perform (I'll handle it") 5. Duty by creation of risk (hit with car) (otherwise there is no duty to act)

Contracts: Acceptance of Goods

Once accept cannot later reject; payment without the opportunity to inspect is NOT an acceptance; rejection must be timely (or considered acceptance); retention as acceptance (keeping goods is implied acceptance) Tip: watch for when B first receives vs. when B first complains

Equitable Conversion

Once the land contract is signed equity regards buyer as owner of real property. Seller maintains bare legal title, held in trust for buyer, possession follows bare title SO seller is entitled to possession until closing - Risk of Loss: shifts to buyer unless K states otherwise - EXCEPT: Jurisdiction follows the Uniform Vender and Purchasers Risk Act (minority): risk stays w S until B takes legal title or possession

Requirements Contract

One party agrees to supply as much of a good or service as is required by the other party and in exchange the other party expressly OR implicitly promises that it will obtain its goods or services exclusive from that party

Evidence: Habit, Routine and Practice; Industry Custom

One's regular response to repeated specific situation - Admissible as circumstantial evidence of how person/business acted on occasion at issue in litigation - Prove on a particular occasion a person acted in accordance with practice/habit (no corroboration needed) - Consider (FREQUENCY of conduct: "always," "never," "invariably," "automatically," "instinctively" and PARTICULARITY/distinctiveness: (skipping steps) not (hates stairs)) high bar Industrial Custom a Standard of Care: - how others in same trade/industry acted in recent past may be admitted to demonstrate how party should have acted in instant litigation (not binding/conclusive)

Contesting a Will: Standing

Only an interested party can contest a will - MUST have an economic interest adversely effected by the will's submission to probate - 2 categories: (i) Heirs: don't want probate (want intestate distribution) and (ii) Legatees under an earlier will (gift is reduced by new will)

Depositions

Oral or Written; (1) CAN depose NON-PARTIES: MUST subpoena; cannot be required to travel more than 100 miles from residence or place where regularly transacts business (2) Parties: need only proper service - subpoena duces tecum: requires deponent bring materials/documentation - Procedural: no more than 10 depositions, same party twice OR one D for more than one 7 hour day WITHOUT order - USE: at trial to impeach; any purpose if D is an adverse party OR unavailable to testify

Legal/Medical Malpractice

Owe duties of confidentiality and loyalty. Must act with same degree of care, skill, diligence and knowledge as commonly possessed and exercised by a reasonable, careful and prudent lawyer/doctor in that area

Corp. Decision Making: SHs

Owners of corp. w/little control - Can elect/remove directors, decide when to sell their stock

Immunity:

Parental, Governmental (sovereign)

Concert of Action

Parties acting in agreement, both are liable (substantial assistance or encouragement) - Regardless of actual physical contact by both

Limited Partnership

Partnership with at least one general partner and at least one limited partner

Delegation

Party to a K transfers duties under K to a 3rd - Delegable duties: generally all duties UNLESS either (i) K prohibits delegation or assignment, OR (ii) Personal service K calls for very special skills - Non-performance by delegate: delegating parties always remain liable, Delegatee only liable if receives consideration from delegating party - Delegation for Consideration: NOT an assignment- delegating party is still liable to pay Delegate, Delegate CANNOT enforce against other K party

Wills: Incorporation Outside Docs

T may incorporate a written document into T's will IF: (i) doc exists at time of execution of will (ii) will's lang manifests T's intent to incorp. the doc. (iii) will's language describes the doc with enough specificity to allow its identification

Corporations: Dividends

Payment to SH by corp. out of current or retained earnings in proportion to number of shares held - Within purview of BoD (decision MUST be made in good faith and fair dealing) - Question of judgment (keep DH's happy w/ some cash)

Fundamental Right to privacy

Penumbra: - Privacy in marital relationships (use of contraceptives) - Right - to procreate (not be sterilized) - to marry - to obtain an abortion - to educate one's children - to raise children and maintain a relationship with them - to control child's upbringing - to refuse medical treatment (adults) - Homosexual behavior - to association

Partnership: Winding Up

Period between dissolution and termination in which remaining partners liquidate the P's assets to satisfy P's creditors

Warrant: Automobiles Containers

Permitted search of containers in vehicles ONLY when there is PC to believe that either the car as a whole or the container itself holds contraband or evidence - If only container: search is limited to the container - If stolen TV: can't look in a pill box

Strict Products Liability: Damages:

Personal injury or property damage required

Partnership: Liability of Incoming Partner

Personally liable ONLY for obligations incurred after admission as a partner BUT any capital contributed to P may be used to satisfy prior debts

Warrant: Not searches

Plain View (smell/hear) Consent Terry Frisk Exigent Circumstances Inventory Searches

Brief Stop

Police have the right to briefly detain a person even if they lack probable cause to arrest - MUST have reasonable suspicion based on articulable facts - Flight alone is not enough (but not a stop until you are tackled)

Possessor's Rights: Trespass

Possessor has right to be free from an invasion of land by a tangible, physical object (bring ejectment action)

Judgment as a Matter of Law (JMOL)

Post Trial Motion: assumption that everything worked correctly BUT the opp party failed to meet the burden (i) circumstantial ev so insubstantial and insufficient that it does not justify submission to jury; must consider in light most favorable of non-movant (if give equal support: must go to jury); judgment of motion is final (must appeal) - Renewed JMOL (RJMOL): same but after jury verdict request to eliminate verdict (MUST have given JMOL at proper time)

Identification

Post charge (right to counsel): Line ups and Show Ups NO right to counsel for: photo line ups, blood samples, handwriting samples, pre-charge lineups, brief recess during D's testimony at trial, parole/revocation proceedings, fingerprints, DNA cheek swabs after arrest

Abortion

Prior to viability: States may not prohibit abortions BUT may regulate so long as they do NOT create an undue burden on the ability to obtain an abortion (i.e. 24 hour waiting period) Post viability: MAY prohibit UNLESS necessary to protect woman's life or health No duty to subsidize or provide in public hospitals

Priority: Special Rule Control********

Priority ALWAYS goes to control perfection (1) Investment Prop vs. Creditor: control over prop over ANY sec int perfected by ANY other method (2) Deposit Accounts vs. Creditors********: ONLY way to get priority over deposit account is through control (i) Control vs. Control: Co-Owner/signer (first); Bank maintaining account (second); agreement w bank to control w/o further consent (third) (ii) Control vs. Proceeds: Comingled Accounts: control wins - Note: If D transfers money from account by check or electronic funds xfer: transferee receives funds free of sec int UNLESS acting in collusion w D to violate SP's right (3) Purchaser of Chattel Paper (rare): takes priority IF in good faith & in ordinary course (4) Purchaser of Instruments: take priority IF gives value AND takes possession in good faith

Possessor's Rights: Nuisance

Private Nuisance: substantial and unreasonable interference with another's land (no physical invasion required) includes odors and noise - Does NOT include hypersensitive P

Strict Products Liability: manufacturing defect

Product is different from the rest: departs from original design even though all possible care was exercised in the preparation and marketing

Strict Products Liability: Breach

Product is unreasonably dangerous

Free Exercise Clause

Prohibits gov't interference with religious beliefs - Generally does not prohibit regulation of conduct

Land Contracts: Duty to Disclose

Promise not to make any false statement of material fact OR (i) On Site: seller is obliged to disclose known defects that are (a) unknown and not readily observable AND (b) materially effect the value of property (ii) Off Site: similar duty to disclose conditions that materially affect the value, habitability, use or enjoyment of the property IF: (a) unknown and not readily observable by buyer AND (b) Materially effect the value of property - NO duty to investigate or disclose transient conditions - Disclaimer does NOT excuse from liability for fraud OR failure to disclose - "As is" clauses are usually permitted

3rd Party Beneficiary: Parties

Promisee: Original recipient (i.e. customer) Promisor: Owes (i.e. Ins. agency) Obligor: 3rd Party Beneficiary

Partnership: Property Ownership

Property acquired by P is property of P, partner's do not own property Property acquired in the name of the P, transferred to P or partner in capacity as partner, purchased with P assets NO interest can be transferred without P authority

Causation: Intended Consequences

Proximate cause IF desired effect by desired means even if occurred in unplanned way

Redemption of Corp. Stock

Public Corps.: NO dissociation rules; not obligated to repurchase from SHs Closely Held Corps.: No market for stock, minority holders can't get out, become abused ("freeze out"); common law prohibits controlling SHs in a close corp. from denying equal access to stock repurchase to minority SHs (repurchase from one, must offer to repurchase from all)

Public Disclosure of Private Facts

Publication to a wide audience, of private not public facts, that is highly offensive to a reasonable person

Inchoate Offense

Punishable even if desired crime is never consummated - Solicitation, Conspiracy, Attempt

Comparative Fault

Pure Comparative: P can still recover even if more at fault, recovers for percent of D's fault Modified: If P more at fault cannot recover

Rape Shield Law

Rape Offense Cases: V's sexual predisposition - NOT opinion/reputation evidence about V's sexual propensity OR evidence of specific sexual behavior of V - Exceptions: (i) Criminal: evidence of SPECIFIC instances of V's behavior for (show someone else was cause of semen/injury/phys. ev.) OR specific to D if offered BY D to prove consent OR if proffered by V for ANY reason; OR evidence that, if excluded, would violate D's Constitutional rights (would prohibit d from putting on an effective defense, i.e. similar claims in the past that were untrue) (ii) MAY admit ev. of sexual behavior/predisposition IF probative value substantially outweighs danger of harm to any V and unfair prejudice to ANY party

Economic Liberties

Rational Basis test for laws affecting economic rights: Constitution only provides minimal protection for economic liberties - Constitutional rights to enter into and enforce contracts; pursue trade/business; acquire, possess, convey property

Rational Basis Test

Rational Relation to legitimate government interest Rational: reasonable Relation: can be remote, feasibly connected (conceivable) Burden: on challenger

IIED: severe emotional distress

Reasonable person standard

Defense of Dwelling

Reasonable, non-deadly force to prevent/terminate another's unlawful entry into or attack upon her dwelling from what D reasonably believes is an imminent, unlawful interference - Deadly for ONLY to prevent a violent entry AND in reasonable belief that the use of deadly force is necessary to prevent a personal attack on herself or another in the dwelling

Service of Process

Reasonably calculated to apprise recipient, most reasonable method, timely (w/in 120 days of filing or court must dismiss) - Notice requires: A summons (formal court notice of suit and time for response), AND copy of complaint - Served by ANYONE over 18 (no court appointment necessary - Personal service: given to D personally, ANYWHERE as long as D receiver - Substituted Service: at D's "usual" abode (use common sense: summer home if in summer); w/ another RESIDENT (butler but not babysitter) of home IF suitable age/discretion - Service on agent: if receiving service is in scope of agency - State law: methods permitted by statute in forum where service is made - Waiver by mail

Free Speech: Facial Attack

Reasons to strike a statute on its face: 1. Over breadth (too much barred) 2. Vagueness (what does that mean) 3. Prior Restraints (Before the speech is made; i.e gag orders, generally Uncon) 4. Unfettered Discretion (one person: too much power/discretion to determine how/what/when)

Covenant: Common Scheme

Reciprocal negative servitudes implied ONLY if, at the time that sales in the subdivision began, the developer had a plan that ALL parcels would be subject to the restriction - Evidenced by: (i) a recorded plat, (ii) a general pattern of restriction, OR (iii) oral representations to early buyers - Terminated ONLY when the entire subdivision is so SERIOUSLY affected that the restriction would be inequitable

De Facto Corp*********

Recognized IF: - Proprietors failed to form a de jure corp BUT were acting in good faith, colorable attempt to comply (unaware of failure to form) AND there has been some exercise of corp. privileges (conducted business affairs as tho it was a corp.) - If qualify: treated as a corp. for all purposes EXCEPT action of state (shields proprietors from personal liability)

Foreclosure: Redemption

Redemption nullifies foreclosure sale: (1) Redemption in Equity: (universally recognized up to date of sale) prior to foreclosure sale debtor can redeem land by (i) paying off the missed payments, AND (ii) interest, AND (iii) costs; option lost at time of foreclosure sale; CANNOT waive (clogging the equity of redemption) (2) Statutory Redemption: debtor has a statutory tight to redeem for some fixed period of time after the foreclosure sale has occurred (usually 6 mos. to a year); ONLY pay amount of the foreclosure sale price (NOT original debt); Debtor/Mortgagor has right to possess property during statutory period even tho foreclosure sale occurred

Non-exoneration Liens

Regardless of specific directive: devisee passes subject to mortgage interest at date of death - Gets prop WITH the lien (estate does NOT pay out of residuary UNLESS in express language of the will)

Relevance: Pragmatic Considerations

Relevant evidence is not admissible if probative value is substantially outweighed by the danger of: unfair prejudice/confusion/waste of time - Probative value: how persuasive is the evidence? (high/low) - Substantially outweighed (balance tips towards admissible) - Unfair Prejudice: Unfair effects, provokes unwarranted bias or irrational assumptions (not just damaging but improper) - Confusion: Mislead/confuse the jury - Undue delay: Unnecessary or duplicative

Hearsay Exception: Business Records

Report to show that act/event occurred - Must establish (i) recorded at/near time data arose; (ii) By a person w knowledge ; (iii) regular business practice to make record) - Observations and Investigations Pursuant to Duty (except law enforcement reports- NOT admissible in criminal cases) - Absence of Entries: Admissible to show that a transaction/occurrence did not take place a record is not included in a record IF record was regularly kept for that kind of matter

Discovery

Required: (1) Initial (identify persons/docs that are likely to be discoverable information the opp party may use to support its claims/defenses AND computation of damages AND D any ins. for judgment (2) Experts: (identify experts who may be used at trial and produce a written report w/ opinions, data collected, qualifications and compensation for study (3) Pretrial: no later than 30 days before trial, give detailed info of trial evidence, including docs/witnesses (live or by deposition) (4) Substantive Answers to requests for Discovery: request and Answer both certified by counsel it is warranted, not interposed for improper use, not unduly burdensome (5) Duty to Supplement: Party's required to supplement answer if circumstances change the disclosure or admission

Revocation of Acceptance of Goods

Requirements: nonconformity substantially impairs value of goods AND excusable ignorance of grounds for revocation or reasonable reliance on seller's assurance of satisfaction AND within a reasonable time after DISCOVERY of nonconformity - Effect: same as rejection (B returns goods: S returns payment) Revocation of Acceptance IS NOT rejection (cannot reject after accept) (I.e. Tent for cold-don't know it is bad until winter)

Installment Contracts

Requires or authorizes: delivery of goods in separate lots; to be separately accepted - buyer has the right to reject ONLY THAT installment when there is a SUBSTANTIAL IMPAIRMENT so that the installment CANNOT be cured - Entire K is breached ONLY IF the nonconformity SUBSTANTIALLY IMPAIRS the value of the ENTIRE K

Negligent Infliction of Solely Emotional Distress: Damages

Requires physical manifestation Unless; negligent notification of family member death or close relative's corpse

Marriage

Requires: (1) License (showing capacity to marry, age/mental) (2) Ceremony (officiant, exchange of promises, witnesses)

Pleadings: Answer

Responds to allegations of complaint 1. explains D's position (admit/deny/state lack of sufficient info to admit/deny) 2. Failure to expressly deny is an admission ("P has no proof I did it" = admission) 3. CANNOT plead insufficiency IF public knowledge OR in D's control 4. Raise affirmative defenses (SOL, SOF, res judicata, self-defense) 5. MUST raise R 12 defenses of waived

Restraint on Alientation

Restriction prohibiting the recipient from selling or otherwise transferring his interest in the prop - Restraints are void against public policy allowing landowner to freely dispose of the proper - UNLESS (i) a prohibition against partition of property for a LIMITED time, OR (ii) the right to refusal (A to B, A may require that if B later decides to sell, she must first give A the opp to buy back) MUST be a reasonable amount of time - Just get rid of the offending language (does not otherwise effect validity of the devise)

Piercing the Corporate Veil (PCV)

SH personally liable IF abuses privilege of incorporation AND fairness - ONLY close corps. - MUST have (i) abused the privilege of incorporating AND (ii) Fairness MUST require holding them liable - MORE likely for tort action than K*** - 3 main avenues (i) fraud (ii) under-capitalization (lack of capital to meet obligations) (iii) Alter Ego - Alter Ego: MUST have (i) Substantial Ownership AND (ii) one or more: (a) failure to observe corp. formalities; (b) non-payment of dividends, (c) insolvency of debtor corp. at time (d) siphoning of funds by dominant SH (e) absence of corp. records (f) corp. is merely a facade of operations of dominant SH

Corporate Suit: Direct

SH seeks to vindicate a personal claim growing out of ownership of stock - Breach of Duty to individual (i.e. corp. does not honor preemptive rights) - No special procedural hurdles (regular rules apply) - Indications: Injury is ONLY to one or some Ps not all, individually, as SH, corp. has no right of action in complaint

Corporate Suit: Derivative********

SH sues to enforce the corp.'s claim "in its favor" - stands in shoes of corp., derives from corp. right, act injures ALL SHs NOT just some - Indication: Could the corp. have brought this suit? - Look for suit for breach of duty of care/loyalty***** (duties are always owed TO the Corp. NOT SHs) - Standing: SH may not commence or maintain derivative suit UNLESS SH: (i) was SH at the time the claim arose OR by operation of law from someone who was at time (inheritance/divorce) AND (ii) fairly and adequately represents the interests of the corp. AND (iii) submits a written demand to the corp. - Procedural requirements: (i) written demand to exhaust intra-corporate remedies (BoD can accept demand and authorize corp. to sue; reject demand and SH walks away; reject demand and SH sues BoD for failing to sue: BoD protected by BJR UNLESS decision made w/o ANY on-the-record efforts to consider the matter OR decision was tainted by conflict of int) - Recovery: goes to corp. (SH may recover costs)

Closely Held Corps.: Duty

SHs owe each other substantially same fiduciary duty as partnership - Utmost good faith and loyalty (may not act out of self-interest, more stringent than public corps.)

Default Methods: Self-help repossession

SP is entitled to take possession w/o judicial process ONLY if it can be done w/o "breach of the peace" - Breach of the Peace: ANY conduct by SP that has the potential to lead to violence; generally presence of D + verbal objection (weigh factors): (i) unauthorized entry to home (commercial bldg. more acceptable) (ii) Garage (consider attached/detached) (iii) CAN break locks but MUST relock - Nighttime is the right time - IF SP breaches the peace: Loses authorization to repossess AND may be sued for conversion and possibly torts; liable for actual and punitive damages

Self Defense: Reasonable belief

SUBJECTIVELY believes threat exists AND OBJECTIVE basis for that belief - Reasonable but mistaken belief

Partnership: Salary

Salary: without an agreement NO salary unless winding up

Wills: Adopted Child

Same as natural children of adopted parents (Cannot inherit from natural parents anymore) UNLESS - adopted by step-parent: then can inherit from both OR - Orphan adoption: parents die and child adopted by close family member (child continues to inherit from other family members)

Strict Products Liability: design defect

Same as others but unsafe by design, there are feasible, safer alternatives available

Contracts: Consideration Substitute

Settlement: D agreed to monetary vale to settle claim; Requires: D: pay sum; P: relinquish right (IF P had genuine belief of validity of claim at time of settlement); Promissory Estoppel- clear and definite purpose; reliance that is reasonable, detrimental and foreseeable AND enforcement is necessary to avoid injustice (only get back what you put in)

Right of Publicity: commercial purposes

Seeks to protect the property interests of celebrity Injury is not personal privacy it is economic loss

Service: Waiver

Send 1st class with (i) a copy of the complaint; (ii) 2 copies of waiver; (iii) inform D of consequences of waiving and not waiving (iv) name court where claim was filed; (v) request the D return form waiving by mail (vi) prepaid means of returning form (vii) Provide reasonable time to return (usually 30 days (US) and 60 days (foreign)) (viii) P files waiver in court (effective at time of filing) - Failure to waive: P must summons formally, D must pay costs of service if located in US

Corporation: Stock

Shares of units of ownership in corp - Types: (1) Preferred (class treated more favorable: special dividend, liquidation, redemption rights) (2) Common Stock: receives less favorable treatment

Corporations: Sale of Substantially All Assets (SSAA)

Similar to merger BUT buyer of assets is not liable for selling corp.'s creditors********* - ONLY a fundamental change for selling corp. (usually followed by dissolution) - Selling corp. still exists - Proceeds from sale often distributed to SHs (after creditors paid)

Conversion: Interference

So serious that it requires D to pay chattel's full value (unauthorized sale, interfere with rights of possession, refusal to surrender)

Duty: Landowner licensee

Social guest/enters for personal benefit Duty to warn against known, not obvious conditions, no duty to maintain safety

Negotiable Instruments: Accommodation Party

Someone who signs an instrument to lend his credit to another party w/o directly benefiting from the value given (like a surety)(I.e. indorsing back of check to encourage check instead of demanding cash) - Liable on note if notified note was presented for payment and dishonored - Enforceable w/o receiving consideration

Professional Negligence

Someone with special occupational skills is required to possess and exercise the knowledge and skill of a member of the profession in good standing in similar circumstances

Nonoccurrence of a Condition

Something must occur or be done before other party has to perform ("On condition that", "Conditioned upon", "Provided that", "If"): 1. Establish sequence of performances (i.e. payment schedules)(if K is silent then construed to be concurrent unless one is capable of instant completion (payment) and the other is not (work) then on-instant due first) 2. **Allow Escape**: excuses one party from obligation if other does not satisfy Exceptions: Waiver (P expressly waives condition); Prevention (P hinders D's ability to satisfy condition

IIED: another

Special relationships: a person in a position or relationship with another person which gives him actual or apparent authority over him, or power to affect his interests; behavior will be carefully scrutinized Special protection: young children, the younger the more protection Hypersensitivity: only if D is aware of the condition

Damages

Special: economic loss Nominal: not for negligence Punitive: Punishment/deterrence

Larceny

Specific Intent Common law elements: - Wrongful taking, a carrying away (asportation)(slightest movement); of property of another, by trespass (without permission); with intent to permanently deprive (MUST exist at the time of the taking- but consider theory of continuing trespass) IF a defendant intends, when taking the property, to recklessly use it temporarily, and then abandon it, hoping someone will return it to the victim, even if the property somehow does return to the victim - Exception: taking property in belief it is yours or you have some right in it

Mental State: Types

Specific intent crimes; Malice Crimes; General Intent Crimes; Strict Liability Offenses

Wills: Anti-Lapse Statutes

Specific times when predeceased beneficiary can be substituted by another (NOT intestacy): - 2 requirements: (1) Devisee is within scope (specified by relationship to T: grandparent; decedent of grandparent; OR step-child) AND (2) Devisee has decedents (alive) (can ONLY devise to decedents) - Un-qualifying terms: Cancel out anti-lapse statute (i.e. "if he survives me," "my surviving children")? Simultaneous death (120 hours) - Consider: is surviving a condition

Wills: Family Allowance

Spouse (or dependents): entitled to a reasonable allowance (usually 12k)

Free Exercise: Prohibitions

State CANNOT - Require office holders or employees to take religious oath - Exclude clerics from holding public office - Refuse to grant unemployment to person who quit job for religious reasons (need not belong to a formal religion as long as belief was sincere) - Amish exempt from compulsory school attendance - Courts from declaring a religious belief to be false

Right to Travel

State cannot prevent people from moving into state (strict scrutiny); Restriction on foreign travel (rational basis)

Dormant Commerce Clause

State law that effects commerce - MUST be Non-discriminatory (prefer one state over another) - No UNDUE burden on interstate commerce (NECESSARY to achieve an IMPORTANT government purpose) - UNLESS there is Congressional approval OR the state is a market participant

Non-Hearsay: Prior Identification

Statement MADE by W AND subj. to cross

Hearsay Exception: Forfeiture

Statement against a party that wrongfully caused DT's unavailability: (i) D unavailable, (ii) other party engaged/acquiesced in wrongdoing (even if no direct knowledge or part of a bigger group-conspiracy), (iii) intended to cause unavailability (persuading/begging is not wrongdoing, threats are) (iv) wrongdoing caused unavailability

Hearsay Exception: Statement Against Interest

Statement against interest (penal, pecuniary or proprietary); at the TIME it was made; DT is UNAVAILABLE

Hearsay Exception: Medical Diagnosis or Treatment

Statement for purposes of medical diagnosis or treatment; (i) past or present symptoms, pain, sensations ("my arm is killing me") OR (ii) general cause or external source thereof ("I fell down a stairway" NOT statements about liability or identity of tortfeasor UNLESS dv or child abuse) - As reasonably pertinent to diagnosis or treatment (flows one direction: patient to Dr. not Dr. to patient)

Hearsay Exception: Present Physical Condition

Statement made by DT to anyone about DT's CURRENT physical condition- Pain/bodily health; "now" NOT "last week"

Hearsay Exception: Declaration of Intent

Statement of DT's intent to do something in the future, including the intent to engage in conduct with another person (i) contemporaneous statement about a matter as to which DT has unique knowledge (i.e. "I'm going to the bowling alley tonight" OR "I'm going to the bowling alley tonight with Raymond")

State Taxation of Fed Govt

States cannot tax fed government activity - Can tax income of federal employees

Corporation: Treasury Stock

Stock company has issued then reacquired (considered authorized but unissued, corp. can resell AND BoD can set any price it wants)

Statutory Rape

Strict Liability offense - Consent is no defense - Mistake is no defense

Equal Protection: Remedial Action

Strict Scrutiny: CAN discriminate based on class ONLY if classifications made in an effort to make a class whole after past discrimination; righting a wrong - Requires: clear proof of past discrimination, action is actually remedying the specific wrong (not serving to promote it), must have an end

Strict Products Liability: Duty

Strict duty owed by commercial "seller" to supply public with a safe product

Impeachment

Subject to impeachment: Pres., Vice Pres., federal judges, officer of US Power is in House of Reps, Trial and conviction of impeachment only in Senate

Nuisance: Private

Substantial and unreasonable interference with the use and enjoyment of private land (includes noises and smells)

Substantial certainty

Substantially certain that results would occur Reasonable person test - Reasonable person would believe that results were substantially certain to occur

Intermediate Review

Substantially related to achieving an important government interest - Actual objective is important; must be a very good way of achieving the goal not the best way Burden: government

Wills: Omitted Children

T fails to provide for child who is believed to be dead OR is born or adopted AFTER the T executed the will, omitted child receives share - Amount: equal to what would have received intestate (if no other children) OR share limited to what devises made to T's then living children under the will - EXCEPTIONS: NO intent IF (i) Appears omission was intentional, (ii) T provided for child by transfer outside of will (w intent that transfer be in lieu of testamentary provision), (iii) T devised all/substantially all of the estate to the other parent of the omitted child AND other parent survives T, OR (iv) makes new will after event and does not add *** Check date of last execution or publication (codicil) vs. date of birth/adoption/undeath

Ademption by Satisfaction

T gives property to D in whole or in part prior to death IF - T declared gift is satisfaction in contemporaneous WRITING, Acknowledged by D that gift is in satisfaction - Deducted by value at time given

Landlord: Implied Covenant of Quiet Enjoyment and Constructive Eviction Rule

T has right to quiet use and enjoyment of the premises without interference by L (residential or commercial); can be breached by L's wrongful eviction/exclusion of T from premises - ANY act/omission of L which renders the promises substantially unsuitable for the purpose for which they were leased OR which seriously interferes with the beneficial enjoyment of the premises is a breach of the covenant of enjoyment AND constitutes a constructive eviction of the T

Wills: Revocation

T may revoke in whole/part by: (i) Executing a Subsequent Will that revokes first (ii) Residuary Clause: revokes through inconsistent statement; (iii) Performing a Revocatory Act with intent (includes burning, tearing, canceling, obliterating, destroying the whole or any part) (majority: must touch some content of the will (words, not just void written on top); UPC/modern: not need to touch writing; cannot revoke a xerox copy; must be one original (only need be one original)) - Remains revoked until revived - Revocation of will ALSO revokes ALL codicils (revocation of codicils does NOT revoke will)

Lease: Assignment

TI transfers ALL of his remaining interests to T2 (ALL is defined in area and time) - T2 and L: privity of estate (liable to each other for covenant that run with the land) L can sue T2 directly and vice-versa - T1 and L no longer have privity of estate still HAVE privity of K (L can sue T1) - Absent an express limitation there IS a right to assign (more flexible with commercial land) - With express agreement cannot UNLESS L has allowed it to happen once and did not EXPRESSLY state it was a one time allowance

Future Interest: Executory Interest

Takes effect at the end of a fee simple determinable OR fee simple conditional (i) future interest in 3rd party transferee (not a remainder) (ii) shifting (cut short interest in another) or springing (iii) preceding estate terminates upon the happening of a condition rather than a limitation (iv) not destructible (v) MUST be vested or contingent remainder (vi) No RAP (O to A, if and when A becomes an atty: A will either become an atty during A's life or the interest goes to a 3rd party (shifting) or reverts to O (springing))

Holder in Due Course

Takes note free of any PERSONAL defenses that could have been raised against the original creditor (lack of consideration, fraud in the inducement, unconscionability, waiver, estoppel Still subject to REAL defenses: incapacity, illegality, infancy, insolvency Requires: (a) notes must be negotiable (b) Original note must be indorsed and signed by named payee (c) original note must be delivered to the transferee (d) transferee must take note in good faith (no notice that is overdue, has been dishonored, is subject to any defense by the maker) and must pay value for it

Robbery

Taking of personal property of another, from the other's presence, by force or threat, with the intent to permanently deprive (MUST be a threat of imminent harm) Tips: presence requirement is broadly drawn (farmer tied up in barn while robbing house); taking by either force or threat includes ripping of necklace (pickpocket insufficient)

Tenancy at Will

Tenancy for ??????? (I.e. to T for as long as L or T desires); termination: by either party at anytime (reasonable demand is usually needed)

Establishment Clause: examples

Unconstitutional: - Gov't sponsored religious activity in public schools (but must give religious groups the same access as other non-religious groups) - Denying benefits to individs. who quit their jobs for religious reasons - Gov't holding rel institutions liable for choice of minister - Gov't discrimination against speech (strict scrutiny) - Gov't assistance to parochial schools for items to be used for religious instruction

Forgery

The making or altering of a false writing with intent to defraud; ANY writing that has apparent legal value

Infancy

Under 7- no criminal liability Under 14- rebuttable presumption of no criminal liability

Causation: Apparent Safety Doctrine

The threat caused by D comes to rest when D gets to a place of temporary safety; then D is no longer liable (but any crime/act along the way is apart of the crime)

Self Defense

The use of reasonable force with the reasonable belief, that a threat exists

Procedural Due Process

There must be a fair process for a government agency to individually take a person's life, liberty or property (Only intentional, not negligent, deprivation of these rights violates Due Process) - Liberty: Bodily restraint; Significant freedom of action, OR Denied freedom provided by Constitution or statute - Property: Personal belongings; Realty; Anything for which one has a legitimate claim or entitlement to the benefit under state or federal law (I.e. Welfare benefits)

Contracts: Lapse

Time Lapse: offer terminated if no acceptance beyond a reasonable time frame UNLESS otherwise indicated expressly in terms of offer (face to face offer lapses at end of conversation)

Purchase Money Security Interest (PMSI)

Two Kinds (1) Seller Financed PMSI: SP sells D collateral on credit and retains a sec int in item (2) Financer Financed PMSI: An enabling loan to D that enables D to buy specific collateral

Corporation: Qualification

To do business in ANY other state than state of incorporation: MUST qualify in that state - Requirements (i) Obtain authorization from appropriate agency (ii) appoint a registered agent in that state (iii) file annual statements (iv) pay fees and franchise tax

Government Property

Two Plastic Reindeer Rule - Gov't involvement w/religion okay if does not take religion seriously (some religious things are not religious, i.e. ten commandments) - Consider: location, owner, multiple faiths represented, divisiveness in community, less rel alternatives, purpose

Transferred Intent

Tort to tort - only assault, battery, false imprisonment, trespass to land, trespass to chattel Person to person - Mistaken identity is not a defense

Sublease

Transfers anything LESS than the totality of lessee's interest (relationship between L and T1 is fully intact) - L and T2: No privity of estate; no privity of K (L cannot sue T2 directly, must sue T1) - T1 and T2: Liable to each other - Absent an express limitation there IS a right to sublease (more flexible with commercial land) - With express agreement cannot UNLESS L has allowed it to happen once and did not EXPRESSLY state it was a one time allowance

Testamentary Trusts

Trust intent AND essential terms of the trust (trust res, beneficiaries, and trust purpose) MUST be ascertained from the will itself, from a writing incorporated by reference in to the will OR from the exercise of a power of appointment created by the will

Defamation: defenses

Truth (complete), retraction (if made in good faith), Absolute Privilege (made in judicial or legislative proceedings), Consent, Public Concern

Waste Doctrine

Types of waste: 1. Voluntary/Affirmative Waste: overt conduct causes a loss in value (willful destruction) LT must not consume or exploit natural resources on prop (timber, minerals, oil) UNLESS an exception applies (PURGE) (i) Prior Use (can continue to exploit in same manner unless otherwise agreed) (ii) Repairs ad maintenance (iii) Grant (granted the right) (iv) Exploitation (only valid purpose of the land) 2. Permissive Waste, neglect: land allowed to fall into disrepair (must keep in reasonably good repair); Must pay all ordinary taxes (to extent of income or profits from land OR only to extent of fair rental value 3. Ameliorative Waste: cannot engage in any acts that enhance the property value unless ALL future interest holders know and consent

Contracts: Gap Fillers

UCC 1. Price (trade/market value) 2. Place of delivery 3. Time for Delivery 4. Duration of K 5. Time for payment

Contracts: Delivery

UCC 1. Shipment Contracts: Seller completes delivery obligations (before delivery) WHEN (i) gets goods to common carrier, AND (ii) makes reasonable arrangements for delivery, AND (iii) notifies the buyer - Indications: FOB seller business 2. Destination Contracts: Seller does not complete delivery obligation until the goods arrive at the destination - Indications: FOB buyer

Express Warranty of Quality

UCC sale of goods: 1. Express warranty: Must be a merchant (manufacturer, wholesaler, retailer, distributor, operator, restaurant); statement MUST be basis of bargain (reliance is not required); privity applies; Disclaimers generally denied - Exceptions: Statement of value is not a warranty; statement of opinion is not a warranty

Implied Warranty of Quality

UCC sale of goods: Must be merchant; must be merchantable good; No reliance is necessary - Exceptions: no implied warranty if: (i) Disclaimer (clear/conspicuous), limits remedies but NOT personal injury; (ii) "as-is" clause, (iii) Examination would have revealed defect, or (iv) custom or Usage of trade

Contracts: Battle of forms

UCC: Inclusion of Additional/Different Terms - can accept and suggest new/different terms and it WILL be binding UNLESS new terms materially alter K (change party's risk/remedies); offer expressly limits acceptance; offeror has already objected or objects within a reasonable time - If NOT both merchants: new terms active ONLY if offeror expressly agrees - Knock out rule: removes different terms altogether and uses UCC gap fillers

Anticipatory Repudiation

UNAMBIGUOUS statement of conduct that: 1. Repudiating party WILL NOT perform 2. Made prior to time performance is due - Recovery: Generally gives rise to immediate claim for breach UNLESS claimant has already finished performance (cannot recover until contract date) - Retraction: repudiation can be withdrawn as long as there has been no material change by other party AND timely (other party may require adequate assurance)

Federal Immunity

US is a sovereign and immune from being sued UNLESS it has waived the immunity by statute - Consent must be given clear, express and implicit

Hearsay Exceptions: Unavailability

Unavailable: - Must justify (call to stand and demonstrate: (1) Exempt by ruling on ground of privilege (2) Persists in refusing to testify (3) Testifies to lack of memory - No justification needed: (4) Unable to be present because of death or then existing physical illness (medical documentation, death cert) (5) Is absent from jurisdiction and unable to procure attendance Exceptions: cannot use if person seeking wrongfully caused; party seeking admittance has burden

Legislative and Line-Item Veto

Unconstitutional - Must be bicameralism and presentment - Must veto all or nothing

Free Speech: Vagueness

Unconstitutional if regulation is over-broad IF it regulates more than the constitution allows to be regulated I.e prohibition of all live entertainment to stop nude dancing

Discovery Tools

Which can be used to get information from non-party*********** (1) Depositions: CAN depose NON-PARTIES w/ subpoena (2) Requests to Produce: CAN be to NON-PARTIES w/ subpoena (request that docs/materials be made available for review and copying or permit entry upon designated property for inspection) (3) Interrogatories: ONLY another party (requests answers to ques. in writing under oath) (4) Request for admission: ONLY parties (request that party admit to any discoverable matter)

Closing: Intent

Unequivocal manifestation by grantor of intention to immediately and completely divest title of grantee

Battery: crime

Unlawful application of force, to the person resulting in either bodily injury or offensive touching Actus: force need not be applied directly (i.e. poisoning someone) Mens: negligence is sufficient General intent

False Imprisonment

Unlawful confinement of a person w/o his valid consent - if know escape is available: confinement element will not be met - Consent to confinement is complete defense

Homicide: Murder

Unlawful killing of another human being with malice aforethought (intent to kill, intent to cause grievous bodily harm; attempt to commit a felony; depraved mind/abandoned and malignant heart (recklessness)) Causation: V actually dies - actual: cause-in-fact of V's death; - proximate: D responsible for all results that occur as a natural and probable consequence of his conduct (even if he did not anticipate the exact manner they would occur)

Oral Trust

Valid BUT: MUST be established by clear and convincing evidence AND terms must be established by a preponderance of the evidence IF written trust: CANNOT be amended orally

Proceeds

Unless otherwise agreed to, SP automatically as the rights to any identifiable proceeds of the collateral: (i) Whatever is received upon sale, exchange, collection or other disposition of collateral OR the proceeds of the proceeds (ii) IF collateral is a ins. policy which is cashed in and something bought with the money (iii) ANY claims arising from the loss, defects, damage to the collateral (up to the value of collateral) - Perfection of proceeds: SP automatically has perfected sec interest in whatever proceeds D receives for 20 days: to remain perfected beyond 20 MUST take new action to perfect UNLESS (i) proceeds are identifiable cash proceeds OR (ii) same office rule (i.e. D uses loan to buy inventory, sells inventory and uses proceeds to buy equipment: SP must AMEND FS w/in 20 days) -Comingled Proceeds: Lowest Intermediate Balance test (starting at time proceeds were deposited in account and now: what was the lowest account balance: that's SP's identifiable proceeds - Guarantee of Surety: transfers w collateral (H takes out loan from D, G guarantees loan, C takes sec int in D's loan: G liable to C)

Free Speech: Inciting Imminent Lawless Action

Unprotected: CAN be burdened IF creates a clear and present danger of imminent lawless action - MUST show: imminent illegal conduct if likely AND the speaker intended to cause it

Free Speech: Defamatory Speech

Unprotected: CAN be burdened but IF about a public official/figure OR involves a public concern - MUST show: defamatory + false + fault

Free Speech: Fighting words

Unprotected: True threats (i.e. cross burning carried out w intent to intimidate, personally abusive, incite immediate physical retaliation in an avg person) - Can be burdened (MUST be viewpoint neutral: not designed to punish certain viewpoints) - Test tip: USUALLY unconstitutional for being over-broad, generally regard as invalid

Motion for New Trial

Used to question the adequacy of the evidence, propriety of the process: (i) Must be filed w/in 28 days after entry of judgment (ii) standard: MAY grant new trial for ANY reason that federal courts have historically granted new trials (error at trial made judgment unfair; new evidence could not have been gotten before w/ due diligence; ev doesn't support verdict; process went wrong somehow); case goes to new jury; NOT a final judgment (can't appeal, just retry)

Closing: Acceptance

Usually presume even if grantee is unaware but grantee may refuse to accept; express rejection invalidates deed

Causation: Free, deliberate, informed human intervention

V making free choice causes harm: blame shifts from D

Supreme Court: Access

Virtually all cases come through Cert - Appeal: Mandatory review when reviewing decision by three-judge federal district court - Certiorari: Discretionary; all cases from state courts and US court of appeals come through by cert

Act

Volitional (voluntary or conscious)

Intoxication

Voluntary: ONLY for specific intent crimes (distinguish between sp and gen intent) - Addicts and alcoholics are always voluntarily intoxicated Involuntary: unknowingly being intoxicated OR becoming intoxicated under duress (for either sp or gen intent crime)

Hearsay Exception: Past Recollection Recorded

W once had personal knowledge of writing (i) now forgets AND showing writing to W does NOT jog his memory (ii) writing was made BY or adopted BY W; (iii) writing was made when the event was FRESH in the W's memory; AND (iv) W can attest that, when made, it was accurate - Proponent CAN read it to jury but CANNOT admit to evidence - Opponent has option of introducing it into evidence

Refreshing Witness Memory

W's testimony based on evidence after W has refreshed their memory (the evidence is the testimony not the refreshing doc- no hearsay) 1. Establish person does not recall 2. Identify the reading and ask W if seeing it would refresh their memory 3. Allow opposing counsel to see doc 4. Show and take away doc 5. Can ONLY admit if readily admissible; needs no authentication/best evidence - Opposing party: must be given opp to cross, has ONLY right to introduce relevant portions

Reasonable Ground for Insecurity: Right to Adequate Assurances

WHEN reasonable (but ambiguous) grounds for insecurity arise: CAN, in writing, demand adequate assurance AND (if commercially reasonable) suspend performance until receive adequate assurance ONLY IF: 1. Sale of goods 2. NO unambiguous indication (makes anticipatory repudiation) 3. Reasonable 4. Written 5. Commercially reasonable to stop - Assurance must be provided within a reasonable time (no more than 30 days) - Failure to provide assurances is REPUDIATION

Warrant: Invalid

Warrant Exception IF officer in good faith reliance on warrant with probable cause or particularity defects

Warrant: Incident to Arrest (Vehicle)

Warrant Exception: when incident to lawful arrest, and only the interior of a car (not trunk) WHEN the arestee is unsecured OR there is a reasonable belief that the vehicle contains evidence of the offense of arrest (i.e. no reason if offense is driving on a suspended because no evidence available)

Warrant: Incident to Arrest

Warrant exception: A search indicent to arrest IF arrest is lawful, search is contemporaneous in time and place (wingspan)

Warrants: Bad Faith

Warrant may be held invalid IF ALL: 1. False statement was included in affidavit by officer applying AND 2. Officer Intentionally or Recklessly included the false statement AND 3. The false statement was material to the finding of probable cause

Warrant: Emergency

Warrantless search justified if officer faces an emergency that threatens the health or safety of an individual or the public - Community Caretaker/emergency Aid

Warrants

Warrantless searches are presumed unreasonable UNLESS there is consent

Water Rights: Riparian Doctrine

Water belongs to those who own the land bordering the water course (riparian); Share a right of reasonable use of the water (liable to other riparian owner ONLY if use unreasonably interferes with the use of others)

Water Rights: Prior Appropriation Doctrine

Water initially belongs to the state, right to divert and use it can be acquired by an individ. regardless of whether or not they are the riparian owner BY priority of beneficial use (first in time, first in right) - ANY productive/beneficial use of water is sufficient to acquire the right

Corporation: Issuance

Way for corp. to raise capital - BoD may authorize shares be issued for consideration (minimum issuance price, ANY tangible OR intangible property or benefit to the corp) - Before corp. can issue shares. BoD MUST determine that the consideratio received or to be received for shares to be issued is adequate

Consent: medical

What a reasonable patient would consent to

Probable Cause

When a reasonable ground for belief of guilt, is sufficient to warrant a man of reasonable caution to believe that an offense has been or is being committed (based on facts and circumstances, with the officer's knowledge and with reasonably trustworthy information)

Abatement

When the estate has insufficient funds: Pay expenses from holders in this order: 1. Intestate holders 2. Residuary devises 3. General devises 4. Specific devises

Due process: Standard

When there is an undue burden on a fundamental right: strict scrutiny An incidental burden on a fundamental right OR an undue burden on a non-fundamental right: rational review

Reasonable Suspicion

When there is specific and articulable facts (more than a hunch) AND rational inferences from those facts that a crime has been or is imminently going to be committed, reasonably warrant the intrusion

Corporations: Merger

When two or more business entities combine into one - Disappearing Corp. requires SH vote, ceases to exist in fact and law - Surviving corp. continues to exist-name may have been altered - Protection for SHs: SH vote against merger; Dissenting SH has right to appraisal; Sue Ds for breach of duty of care or loyalty - SSAA vs. Merger***** watch for: (i) adequate consideration paid (iii) purchaser continued same enterprise after sale (iv) SHs of seller become SHs of purchaser (v) seller liquidation (vi) buyer assume liabilities necessary to carry on business of seller - A parent corporation owning 90% or more of the outstanding shares of a subsidiary corporation can merge the subsidiary into itself without the approval of the shareholders or directors of the subsidiary

Negligence: Analysis

Who are the parties? What was D's conduct? Was it negligent? What are the defenses?

False Light

Widespread dissemination of information, that is false or has the capacity to deceive, that is highly offensive to a reasonable person

Strict Liability: animals

Wild: not by custom devoted to service of man; owner liable for harm caused by action Domestic: devoted to serving mankind: owner liable when knows or has reason to know the animal has dangerous propensities

Vicarious Liability: Scope

Within the job description; intended to benefit the P Coming and Going rule: only liable when it is a special errand or employee compensated for time/travel Frolics and Detours: Frolic: significant deviation, not liable Detour: minor deviation, employer liable

Partnership: Profits and Losses

Without agreement: Profits shared equally, losses shared just like profit With agreement: Losses are shared JUST like profits; if profits 60/40 then losses are 60/40

Partnership: Management

Without an agreement on control, control is equal - One partner, one vote

Contracts: Mistake

Words of K are clear and concise BUT one or both are mistaken as to the facts as they existed at the time of the agreement - Mutual Mistake: (usually a rescission) i. related to facts in existence at the time; ii. shared by both; iii. relates to basic assumption on which K was made; iv. material fact on which K was based; v. complaining party did not bear risk - Unilateral mistake: same BUT made by only one party (who did not bear risk) AND enforcement MUST be unconscionable OR other party had reason to know of the mistake OR his fault caused the mistake - Remedy: rescission or reformation *** Not usually valid defense on bar

Res Ispa Loquitor: elements

Would not have occurred in the absence of negligence on someone's part Caused within agency or instrumentality of D's exclusive control P did not contribute to fault

Integration

Written agreement that court finds is the final agreement, triggers parol evidence rule - Partial Integration: written and final but not complete - Complete integration: Written, final and complete - Merger Clause: "this is a complete and final agreement"

Corporation: Subscription****

Written offers to buy stock from Corp. - Pre-incorporation subscription CANNOT revoke for 6 months (UNLESS it says otherwise) - Post-Incorporation subscriptions: Revocable UNTIL acceptance

Consent: express

Written or stated

Misappropriation

Wrongful taking/exploitation, of a competitors market valued information, for the D's own commercial purposes, resulting in harm

Hearsay Exception: Exculpatory Statements

in criminal trials: Factors: (a) DT still exposed to prosecution, (b) repeated statement consistently, (c) any reason to lie, (d) relationship to D (e) parties to whom statement was made

Contracts: Requests for bids

invitation for offers: the bid is the offer (mostly general contractors)

Negligent Homicide

mens: negligence (did not know but should have)

Fraud: material fact

prediction/promise/puffering: not sufficient UNLESS D knew it was false at the time

Negligence: Special Victims

rescuers: if D negligently put self in peril prenatal injuries: duty owed to viable fetus

Necessity: public

Act that is reasonably believed to be necessary for the purpose of avoiding a natural or public disaster. Absolute privilege; need not compensate P for damages

Trespass to Chattel: damages

Actual damages are required

False Advertising

A false or misleading description/representation of fact, by any person in connection with goods, services, or container for goods used in commerce

Battery: result

Act must result in harmful/offensive contact, intent alone is not enough

Negligence: Duty

duty to prevent foreseeable risks of harm to foreseeable Ps - Objective standard: behave as a reasonably prudent person under the same/similar circumstances to avoid creating foreseeable risk

Trespass to Land: damage

Can recover w/o showing injury to the land

Consent: capacity

Cannot effectively consent: minors, intoxicated persons, mental disabilities, coercion, force, fraud, mistake

Defense of Property: posted warnings

Cannot use to eliminate liability if could not use same level of force if there

Fraud: defenses

Casual statement P could have ascertained matter by exercising due diligence P knew truth of the matter

Fraud: misrepresentation

Concealment: same as false statement - Silence alone is not enough

Intentional Tort: Defenses

Consent Self Defense Defense of others Defense of property Store Owner's privilege Necessity

Public Disclosure of Private Facts: offensive

Consider: context, conduct, circumstances, publication itself and interests of others

Intrusion Upon Seclusion: offensive

Consider: degree of intrusion, motives and objectives, setting (Do not need to show special damages: mental anguish is sufficient)

False Light: False

Does NOT have to be false, just the capacity to deceive (i.e. he likes guys)

False Imprisonment: intend

Does not require motive or malice

Business torts: Intentional interference with Contractual/Prospective Relationship, Breach

Existence of contract, relationship, valid business expectancy; D's knowledge; Intentional interference which induces 3rd party's action; Damages to P

Battery: contact

Harmful: any physical impairment of the condition of another's body or physical pain or illness Offensive (un-permitted): to an ordinary person with ordinary sensibilities Hypersensitivity: Insufficient for unless D is aware of the condition

Self Defense: duty to retreat

If have the ability then obligated to do so (including giving up property; i.e. holding a gun to you for your wallet: give them your wallet)

Trade Secret

Information, which derives independent economic value, not generally known/readily accessible, because reasonable efforts taken to maintain secrecy, obtained improperly

Consent

Informed, express or implied consent, by a person with the mental capacity to do so

Trespass to Land: Intent

Intent only need to be to enter, not to trespass, mistake is not a defense - to enter or cause a thing to enter, remain on land after being asked to leaver, fail to remove something - Includes reasonable airspace and subsurface

Intentional Breach of Contract

Intentional action that causes a third party to breach contract with P

Intentional Interference with Contractual relationship

Intentional interference with P's contractual relations making P's performance more difficult, even if doesn't cause a breach

Intentional Interference with Prospective Relationship

Intentional interference with P's expectations of economic benefit from 3rd person, even in the absece of a contract

IIED: Intentional

Intentional or reckless: complete disregard of high degree of probability that the emotional distress will occur - aware that the person is there

Necessity

Legally permitted interference with another's property under certain circumstances

False Advertising: false or misleading

Likely to cause a mistake/deceive as to affiliation Advertising: misrepresents the nature of the goods

Negligence: special exceptions

Minors: judged according to conduct of person of that age, intelligence, experience UNLESS adult activity Mental Disability, Elderly: weigh in circs

Fraud: damages

Must show actual economic loss

Appropriation: intent

NONE needed

Defamation: public concern/figure

Public Official: actual malice Limited Public Figure Matter of Public Concern: Actual Malice Limited public figure not a matter of public concern: Negligence Private person matter of public concern: Negligence

Fraud: justifiable reliance

Reasonable Includes opinion ONLY IF person is someone with superior skills/knowledge/information

Necessity: private

Reasonable belief that it is necessary to protect the person or property of the actor (or a 3rd person) from serious harm Qualified privilege; liable for damages caused

False Imprisonment: Exceptions

Reasonable means of escape: can easily leave unless escape is dangerous or humiliating Store Owner's Privilege: under reasonable circumstances

Self Defense: reasonable force

Reasonable person standard No deadly unless facing deadly

Consent: implied

Reasonable person would believe P consented through conduct, custom and usage (sports), circumstances (non-action), past conduct

Defense of Property

Reasonable, non-deadly force from what D reasonably believes is an imminent, unlawful interference - Deadly for can never be used to solely defend property - Mistake is NOT a defense (person there by right) - Must first give opportunity to leave

Defamation: Damages

Requires damages Libel: actual damages presumed (even without evidence) Slander: must show actual damages UNLESS per se - regarding one's trade/profession, accusing of committing a serious crime, suggests has loathsome disease, impute on chastity of a woman

Defamation

The intentional, publication, of a false and defamatory, statement, concerning another, resulting in harm

False Imprisonment: Act

Threat is enough: to self or immediate family or keeping valuable property

Conversion: Intent

To commit act, do NOT need to intend to interfere - Mistake is not a defense

Duty: Landowner trespasser

Undiscovered: none Discovered: Reasonable care (warn of any known, artificial, highly dangerous, concealed condition that may cause risk of serious harm

Appropriation

Unpermitted taking, of another's name, picture, image or likeness, that has some intrinsic value, for the use or benefit of another

Mere Words Doctrine

Words are not enough UNLESS - Accompanied by an overt act: (patting holstered gun) unless words undo the conduct (if you weren't my best friend I'd shoot you) - Reputation or characteristics: such as to justify a person's belief that an act would be carried out (i.e. well known gangster)