Mega MBE

Assignment

a transfer of rights to a third party after a contract is formed.

honorary trust?

a trust which is not for charitable purposes and has no beneficiary w/ standing. I.e. trust for a dog tolerated if someone will do it.

Exceptions Requiring Declarant UNAVAILABILITY

"Unavailability" refers to the declarant's testimony. A declarant is unavailable if: 1) Privilege--Exempt from testifying due to a privilege 2) Death or Physical/Mental Sickness 3) Refusal to Testify Despite a Court Order 4) Lack of Memory 5) Absent--Beyond reach of the court's subpoena power CA: If a declarant suffers total memory loss or refuses to testify out of fear, CA regards declarant as unavailable. A declarant must be unavailable for these exceptions to apply: 1) Former Testimony 2) Statements Against Interest 3) Dying Declarations 4) Statements of Personal or Family History 5) Statements Offered Against Party Procuring Declarant's Unavailability

Exceptions to Service of Process Requirements

(1) A defendant cannot be personally served in a state if in state solely as a party or witness in another civil case (2) Subsequent papers filed with the court (e.g. answers, discovery requests) do not require formal service. They may be mailed or emailed (if party agrees). If mailed, recipient gets 3 extra days to respond

Rejection for imperfect tender

(1) Buyer must notify seller of rejection in a reasonable time (2) buyer must hold the rejected goods using reasonable care (3) buyer must give the seller reasonable time to arrange for removal of the goods

CHARACTER EVIDENCE

(1) Character of Evidence in Civil Cases (2) Defendant's Character in Criminal Cases (3) Victim's Character in Criminal Cases (4) Rape Shield: Limitation on Evidence of Victim's Character in Sexual Assault Cases (5) Specific Instances of Defendant's Bad Conduct (Prior Acts)

Common Unforeseen Events

(1) Damage or destruction of contract's subject matter or purpose (2) Death (3) subsequent law or regulation

Limiting Warranty Liability by contract

(1) Disclaimer: limits liabilty only for implied warranties (ex: as is, w/ all faults) (2) remedy limitation: limits recovery upon breach of warranty

RELEVANCE

(1) Logical Relevance (2) Legal Relevance (Discretionary Exclusion FRE 403) (3) Exclusion of Relevant Evidence on Public Policy Grounds (4) Similar Occurrences (5) Habit

Acceptance of goods occurs if:

(1) buyer after a reasonable opportunity to inspect the goods indicates to the seller that the goods conform or that he will keep them despite their non-conformance (2) buyer fails to reject or notify seller of rejection within a reasonable time (no more than a month)

Insecure Party's Options

(1) demand adequate assurances (2) suspend performance until she receives adequate assurances (3) treat contract as repudiated if she does not receive adequate assurances within 30 days

Intended Beneficiary

(1) expressly designated in the contract, (2) directly benefit from some performance under the contract, or (3) stand in such a relationship to the promisee under the contract that an intent to benefit the third party can be inferred.

Common Unforeseen Events: subsequent law or regulation

(1) if performance becomes illegal: excuse by impossibility (2) if purpose of contract becomes illegal: excuse by frustration of purpose

Buyer can only reject a delivery/installment if:

(1) nonconformity substantially impairs the installment (2) nonconformity cannot be cured

Consequences of Incapacity

(1) right to dis-affirm (2) implied affirmation/ratification (3) infant liability for necessities

If buyer has notified seller of imperfect tender, seller may have an opportunity to cure if:

(1) time for performance has not yet expired (2) seller has reasonable grounds to believe nonconforming good sent would be acceptable (ex: prior dealings w/ buyer) (3) seller gives buyer notice of intent to cure

In the UCC when is a signed writing not required to satisfy SOF?

(1) when both parties are merchants (2) when the party asserting the SOF received a signed writing memorializing the agreement and failed to respond w/in 10 days

Bona fide purchaser for value (BFP)

(R) A BFP purchases property for value without notice of a prior conveyance. Purchasers include mortgagees for value, but does not include donees, heirs, or devisees, whom are not protected unless the shelter rule applies. Notice may be either actual, inquiry, or record.

Tenancy in Common - (Presumption under modern law)

(R) A TIC is an estate with multiple tenants in which each co-tenant owns an individual part and each has a right to possess the whole. TIC are freely transferable, co-tenants share the right to possession, there is no survivorship rights, and a co-tenant may force a partition at any time and take sole ownership of her share in the estate.

Perfect Tender - Installment Contracts (Rejection)

(R) A buyer can only reject a delivery of an installment if: (1) nonconformity substantially impairs the installment and cannot be cured. However, rejection is limited to nonconforming installment, not the entire contract. **Note: A buyer can only cancel entire contract based on a nonconforming installment if that installment substantially impairs the value of the entire contract.

Implied promises in land sale contracts - Breach

(R) A buyer must notify seller before closing and give reasonable time for seller to cure defects. If the seller files to cure, the buyer can rescind, file for damages, demand specific performance, or file suit to quiet title. If the buyer fails to notify the seller, however, before closing, contract merges with the deed and seller is not liable.

Miscellaneous Adverse Possession Rules - Color of Title

(R) A claim of title to property not actually owned. Adversely possessing part of the property under color of title is sufficient to acquire title to the entire property.

Remainder - Contingent (condition precedent)

(R) A contingent remainder subject to condition precedent exists where the remainder's taking is subject to a condition precedent, i.e., contingent as to an event. Once the grantee satisfies the contingency, the interest automatically becomes an indefeasibly vested remainder. Example: "To A for life, then to B and his heirs when B gets married." If B is unmarried: A - life estate B - Contingent Remainder Grantor - reversion

Remainder - Contingent (unascertained persons)

(R) A contingent remainder subject to unborn or unascertained persons exists where a remainder is contingent, if created, in favor of unborn or unascertained persons. The remainder is contingent on the grantee becoming born or ascertained. Example: "To A for life, then to B's heirs." If B is alive upon conveyance, remainder is contingent because heirs of B cannot be ascertained until B dies.

Remainder - Contingent

(R) A contingent remainder will be contingent if it is either: (a) subject to a condition precedent, or (b) created in favor of an unascertained or unborn person.

Termination of Offer - Counter Offer

(R) A counter offer terminates the original offer and becomes a new offer; bargaining is not a counteroffer. (Think statement or question, respectively).

Equitable Servitude - Defenses to enforcement

(R) A court will not enforce an equitable servitude if any of the following conditions exits: (1) pervasive changes in the neighborhood, (2) estoppel, (3) acquiescence, (4) unclean hands, and (5) laches.

Covenants (seeking money damages)

(R) A covenant is a promise to do or refrain from doing something related to land. Covenants are not property interests. A covenant concerning real property runs with the land at law and thereby subsequent owners may be burdened by the covenant or may enforce it. An affirmative covenant is a promise to do something related to land. A restrictive covenant is a promise to refrains from doing something related to land.

Deeds

(R) A deed passes legal title from seller to buyer. In order for a deed to be effective, it must meet the following requirements: (1) lawfully executed - signed by grantor and reasonably identify parties and land, and (2) delivered. With respect to deliver, physical transfer is not required, but rather present intent controls. Title passes upon effective delivery. Acceptance is presumed upon valid delivery.

Defeasible Fees

(R) A fee simple estate of potentially infinite duration that can be terminated upon the occurrence of some specified event. Three Types: 1. Fee Simple Determinable (FSD) 2. Fee Simple subject to Condition Subsequent (FSCS) 3. Fee Simple subject to an Executory Interest (FSEI)

Remainders

(R) A future interest in a third person that arises immediately upon the termination of the preceding estate. There are two types of remainders; vested and contingent. A vested remainder can take the form of either: (1) indefeasibly vested remainder, (2) vested remainder subject to total divestment/executory limitation, or (3) vested remainder subject to open. A contingent remainder arises, however, if: (a) there is a condition precedent to the future interest becoming possessory, (b) the future interest vests in an unascertained taker, or (b) both a and b.

Future Interest - Grantees/Third Person

(R) A grantee or a third person may have a future interest in three ways: (1) vested remainder, (2) contingent remainder, or (3) an executory interest. There are three types of vested remainders: (a) indefeasibly vested remainder, (b) vested remainder subject to total divestment, and (c) vested remainder subject to open.

Future Interest - Grantor

(R) A grantor may have a future interest in three ways: (1) possibility of reverter, which accompanies a FSD, (2) a right of reentry and power of termination, which accompanies a FSCS, or (3) a reversion, which defaults future interest for grants of an estate smaller than a fee simple - life estate or leasehold.

Landlord's Tort Liability to Tenants

(R) A landlord may be liable for injuries occurring on leased property. A landlord is liable for injuries involving: Common areas - (R) Landlord must exercise reasonable care in maintaining and repairing common areas Latent Defects - (R) Landlord has a duty to disclose hidden defects he should reasonably know of Assumption of repairs - (R) Landlord is liable for harm caused by negligent repairs he chooses to undertake Public Use - (R) Landlord is liable for known defects if he knows the property is for public use and tenant is unlikely to repair Seasonal or short term lease of a furnished dwelling (R) Landlord is liable for defects that cause harm to tenant

Leasehold

(R) A leasehold is an estate in which the tenant has a present possessory property interest and the landlord has a future interest (reversion). There are four different types of leaseholds: (1) Tenancy for years, (2) Periodic tenancy, (30 Tenancy at will, and (4) tenancy at sufferance.

Contract - Defined

(R) A legally enforceable agreement or promise.

License

(R) A license is a right to use lincensor's land that is revocable at the licensor's will. A license may be oral or written. Accordingly, it does not need to meet the requirements of SOF. A licensor may revoke the privilege at any time, unless estoppel applies.

Material Breach - (Only apply to Common Law)

(R) A material breach occurs in different situations including where performance is rendered within a reasonable time after the time stated, if there is a "time of the essence" clause. Once a material breach occurs, the non-breaching party is excused from performance.

Mortgage

(R) A mortgage is a security interest in land that serves as collateral for the repayment of a loan. A mortgage must be in writing to satisfy the SOF. There are two theories governing the parties' rights. Under the MAJORITY RULE (lien theory), the mortgagor has title and the right to possession absent foreclosure. Under the MINORITY RULE (title theory), the mortgagee has title to the property during loan term. Equitable Mortgage - (R) Debtor gives creditor a deed to his land as collateral for the debt (instead of executing a mortgage) Acceleration Clauses - (R) Terms in loan agreements that require mortgagor to pay off full loan immediately if certain conditions are met.

Transferability of Mortgage Interests & Holder in Due Course Status

(R) A mortgagee can transfer his interest by: (1) endorsing the mortgage note and delivering it to transferee, or (2) executing a separate assignment of the mortgage interest. (R) A holder in due course takes a mortgage note free of any personal defenses the mortgagor could have raised against the original mortgagee, but still remains subject to real defenses. Requirements for holder in due course status are as follows: (1) negotiable title - note must be negotiable, made payable to the named mortgagee, (2) endorsed and signed - note must be endorsed or signed by the named mortgagee, (3) delivered - note must be delivered to the transferee, and (4) good faith and value paid - transferee must take the note in good faith and pay value.

Easement - Negative easement

(R) A negative easement entitles its holder to restrict the servient estate from otherwise permissible activities

Profit

(R) A nonpossessory property interest entitling its holder to enter a servient estate to remove resources such as minerals, timber, soil, or fish. All rules governing easements apply to profits. A profits may be extinguished thorugh misuse or over use of resources on the servient estate.

Nonconforming Use

(R) A once lawful existing use for property, now deemed nonconforming under new zoning laws prohibits the government from eliminating a use all at once unless just compensation is paid.

Leasehold - Periodic Tenancy

(R) A periodic tenancy is a leasehold that is continuous for successive intervals until either party gives notice of termination. A periodic tenancy can be created either expressly, impliedly, or by operation of law. An express agreement is conveyed to a tenant for agreed interval. A creation by implication is a lease that does not specify duration, but provides for rent to be paid at set intervals. Lastly, by an operation of law, occurs in two situations: (1) invalid lease, or (2) holdover tenant. Invalid lease - (R) Occurs if a tenant takes possession despite an invalid lease, that is it violates SOF, a periodic tenancy arises upon the landlord's acceptance of payment. Holdover tenant - (R) Occurs if a landlord accepts rent from a holdover tenant, a periodic tenancy arises for the period the payment overs.

Consideration - Gifts

(R) A promise to give a gift is not consideration, and generally is not enforceable unless it has already been executed.

Consideration - Past Consideration

(R) A promise to pay for a benefit received in the past is not consideration.

Consideration - Pre-existing legal duty rule

(R) A promise to perform a pre-existing legal duty is not valid consideration, unless there is a new written promise to fulfill a debt obligation.

Chain of Title Problems - Wild Deeds

(R) A recorded deed unconnected to the chain of title, e.g. due to a clerk's filing error. Record notice cannot be derived from a wild deed.

Perfect Tender

(R) A seller's performance must be perfect with respect to the goods delivered and the manner of delivery; this is the perfect tender rule. Imperfect tender, however, allows the buyer to retain or reject the nonconforming goods and can either: retain goods delivered and sue for damages, or the buyer may reject some or all goods and sue for damages.

Executory Interest - Shifting

(R) A shifting EI always follows a defeasible fee, which serves to cut short someone other than the grantor. Example: "To A and his heirs, so long as the property is used for storage. But if used for any other purpose, to B and his heirs" Note: A - FSEI B - Shifting EI

Executory Interest - Springing

(R) A springing executory interest cuts short the interest of the grantor or his heir. Example: "To A, if and when he gets married" Note: A - EI Grantor - FSEI

Assignment and Subleases - Subleases

(R) A sublease occurs where the tenant transfers part of the leasehold to a sublessee. Unlike assignments, however, A sublessor remains is in privity of estate and contract with the landlord. The sublessee then pays rent to sublessor as her tenant and is not liable to landlord for rent and is not bound by any covenants unless expressly assumed.

Recording Statutes - Notice

(R) A subsequent BFP always prevails over a prior grantee who fails to record Sample Language: "No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof unless it is recorded"

Covenants - Benefit runs with the land

(R) A successor in interest to the benefiting (dominate) estate may enforce the covenant if the following conditions are met: (1) writing, (2) intent, (3) touches and concerns the land, and (4) vertical privity.

Covenants - Burden runs with the land

(R) A successor in interest to the burdened (servient) estate will be bound by a covenant if the following conditions are satisfied: (1) writing, (2) intent, (3) touches and concerns the land, (4) horizontal and vertical privity, and (5) notice.

Tenancy at Sufferance

(R) A tenancy at sufferance is a default tenancy that arises when a tenant continues to possess property after the lease expires (i.e. a holdover tenant). A tenancy at sufferance is created when the tenant holds possession beyond lease expiration. The expired lease's terms and conditions automatically carry over to the tenancy at sufferance.

Tenancy at Will

(R) A tenancy at will is a tenancy with no fixed duration, terminable by either party at any time without notice. It may be created via an express agreement. Without an express agreement, courts will treat the lease as an implied periodic tenancy.

Tenancy at Will - Termination

(R) A tenancy at will may be terminated by will or operation of law. Termination by will occurs when either party can terminate the lease at any time without notice, but a reasonable demand to vacate the premises is usually required. On the other hand, termination by operation of law occurs upon: death of either party, waste by the tenant, assignment by the tenant, transfer of title by the landlord, or lease by the landlord to a third party.

Tenant's Duties at COMMON LAW - Rent

(R) A tenant has a duty to pay rent, and a tenancy at sufferance arises upon breach.

Landlord's Duties and Warranties - Quiet Enjoyment

(R) A tenant has an implied right to quiet use and enjoyment of the premises, without interference from the landlord. Breach of this covenant may be either actual eviction or constructive eviction

Assignments and Subleases

(R) A tenant may transfer her leasehold interest in whole (assignment) or in part (sublease), unless restricted by lease terms.

Tenant's Duties at COMMON LAW - Repairs

(R) A tenant's duty to repair can be largely modified by lease terms: (a) tenant must maintain premises and make ordinary repairs - mitigated by implied warranty of habitability, (b) tenant must not commit waste, and (c) with respect to destruction of premies without fault of landlord or tenant - CL holds the tenant liable for any loss, and ML holds tenant can terminate lease.

Adverse possession

(R) A trespasser may acquire title to another's property without compensation by possessing the property for a specified period, in a manner conflicting with the true owner's rights. AP requires: (1) Actual possession, (2) open and notorious, (3) hostile, and (4) continuous. Actual - (R) Must possess a reasonable portion of the property to the exclusion of the owner and the public Open and notorious - (R) trespasser's possession must be conspicuous, such that the true owner would know of the trespass if he inspected his property regularly. Hostile - (R) Possession must be without owner's permission. **Note: If a tenant stays in possession after a lease has expired, he is presumed to have permission. Continuous - (R) Possession must be similar to an ordinary owner's use of the property for the statutory period.

Remainder - Vested

(R) A vested remainder automatically becomes possessory upon the natural expiration of the preceding estate, but is subject to two limitations, in that, it cannot be subjected to any condition precedent or vest in an unknown or unascertained person. There are three types of vested remainders: (1) indefeasibly vested remainder, (2) vested remainder subject to total divestment, and (3) vested remainder subject to open.

Remainder - Vested (subject to open; class gift)

(R) A vested remainder subject to open vests in a described class of takers, at least one of whom is capable of taking possession - by virtue of being alive - and not subject to any condition precedent. A class may be either open or closed. A class remains open to allow for future class members and closes when additional class members are impossible. RULE OF CONVENIENCE - Class closes whenever any class member can call for distribution of her share; does not apply if it conflicts with the grantor's expressed intent.

Remainder - Vested (Subject to total divestment)

(R) A vested remainder subject to total divestment is subject to some condition subsequent, such that the remainderman could be divested after taking possession. Example: "To A for life, remainder to B; but if B weds, to C"

Anticipatory Repudiation

(R) AR exists when one party to a contract makes a clear and unambiguous manifestation prior to when performance is due that he will not perform under the contract, and thereby excuses the non-breaching party from performance. The non-breaching party may: (1) treat as breach and sue for damages, or (2) wait and see until if performance is rendered.

Termination of Offer - Acceptance with additional terms (CL only)

(R) Acceptance must mirror the offer. Under the UCC, however, if both parties are merchants, additional terms are a "seasonable expression of acceptance" if they do not materially change the offer and the offeror does not object.

Acceptance

(R) Acceptance occurs where there is a clear expression of assent to the terms of the offer. Under COMMON LAW, acceptance must mirror the offer's terms; it cannot omit or add new terms, that is the mirror image rule. Under the UCC, however, acceptance, by a merchant, may be made by either: providing a promise to ship goods or promptly shipping conforming (perfect tender rule) or non-conforming goods (may give rise to breach).

Perfect Tender - Acceptance of Tendered Goods

(R) Acceptance of goods occurs where either: (1) a buyer, after reasonable opportunity to inspect the goods, indicates to seller that goods conform or that he will keep them despite the non-conformance, or (2) buyer fails to reject or notify seller of rejection within a reasonable time (no more than one month). Note, payment without an opportunity to inspect is not acceptance, and once a buyer accepts goods, he cannot later reject them.

Acceptance - UCC with additional terms

(R) Acceptance that proposes additional or different terms is valid, unless the acceptance expressly requires assent to the different or additional terms. Where BOTH parties are merchants, however, additional terms become part of the contract unless they materially change the offer or offeror objects within a reasonable time.

Life Estate - Doctrine of Waste (Ameliorative)

(R) Acts that economically benefit land's value; usually permitted under modern authorities.

Miscellaneous Adverse Possession Rules - Leasing

(R) Adverse possessor can lease a portion of the land to a third party and still possess the property.

Adverse Possession - Tacking

(R) Adverse possessors can tack together successive periods of adverse possession to satisfy the statutory period, even if successive possession was by different adverse possessors. There cannot be any gaps between periods of adverse possession. Tacking requires privity between successive adverse holders, that is, if my be via a subsequent possessor takes by descent, devise, or by deed purporting to convey title.

Easement - Affirmative

(R) An affirmative easement entitles its holder to make affirmative use of the servient estate.

Assignment

(R) An assignment exists, absent consideration, upon a transfer of rights to a third party after a contract is formed. Under COMMON LAW, assignments that substantially change the duties of the obligor are barred, such as assignments of rights to performance. Additionally, there may be contractual limitations on rights of assignments; either prohibiting or invalidating assignments. Contract provision prohibiting assignments - (R) Take away the right to assign, but not the power to assign. That, an assignee can still enforce the assignment fi he was unaware of the provision. Contract provisions invalidating assignments - (R) Take away both the right and the power to assign. That is, any assignment is invalid and unenforceable.

Assignment and Subleases - Assignment

(R) An assignment occurs where the tenant transfers the entire leasehold to the assignee. An assignee then is in privity of estate with landlord - the two are bound by all covenants that run with the land. The assignor, however, remains in privity of contract with the landlord. While the assignee owes rent directly to landlord, the assignor may be held liable for unpaid rent.

Easement - Appurtenant

(R) An easement appurtenant entitles a dominate estate owner to use a servient estate's land, attaches to the dominate estate, and passes automatically (even if not mentioned in a conveyance)

Easement - By Implication

(R) An easement by implication is an easement legally implied based on prior use by a common grantor on land subsequently divided into multiple plots. An easement by implication requires: (1) easement exist prior to division of a single tract of land, (2) common grantor's use is continuous and apparent, (3) use is reasonably necessary for enjoyment of the dominant tenement, and (4) parties intended the use to continue after division of the land. EXCEPTIONS: (R) An easement may be implied without prior use if: (a) subdivision plat - lots in a subdivision are sold with reference to a map plan, or (b) profit a prendre - holder of a profit a prendre has an implied easement to pass over the land's surface as reasonable necessary to extract materials.

Easement - By Necessity

(R) An easement by necessity arises if access to or from a property is impossible without the easement. An easement by necessity terminates automatically when the necessity ends.

Easement - By prescription

(R) An easement by prescription is a process of acquiring an easement. It requires that acquirer's use of another's land must be: (1) continuous, (2) open and notorious, (3) actual, and (4) hostile.

Scope of Easement - Expansion

(R) An easement holder cannot unilaterally expand the scope of their easement. In the event that an easement holder does unilaterally expand the scope of their easement, one can seek an injunction. **Notes: Misuse or overuse does not terminate the easement.

Scope of Easement - Duty to repair

(R) An easement holder has a duty to make repairs if he is the sole user. If both the servient landowner and the easement holder use an easement, the repair costs are apportioned.

Easement - In gross

(R) An easement in gross entitles an individual or entity (not a dominate landowner) to use the servient estate.

Easements

(R) An easement is a non-possessory property interest that confers a right to use another's land. The burdened land is called the servient estate, while the benefit land is called the dominate state.

Express Easement

(R) An easement may be expressly created by grant or reservation. A grant is an express grant of the easement. A reservation exists where a grantor conveys title to land but reserves the right to continue using the land for a designated purpose. Grantor may only reserve an easement for himself, and is void if reserved for the benefit of another. An express easement must meet the following requirements: (1) in writing, (2) signed by the servient estate holder, and (3) satisfy deed formalities - lawfully executed and delivered.

Scope of Easements

(R) An easement's scope is determined by the terms or conditions that created it. In interpreting an easement's scope, courts will consider the reasonable intent of the original parties.

Equitable Servitudes - (seeking injunctive relief)

(R) An equitable servitude is a promise to enforce in equity against successors though injunctive relief. An equitable servitude is created where there exists: (1) writing, (2) intent, (3) touches and concerns the land, and (4) notice.

Executory Interest

(R) An executory interest is a future interest in a third party that takes effect by cutting short some interest - two types: shifting and springing. Hint: Phrases such as 1. "But if" 2. "Then to" 3. "For so long as" Note: EI holders lack standing to sue for waste **

Remainder - Vested (indefeasibly vested remainder)

(R) An indefeasibly vested remainder becomes possessory immediately upon termination of the prior estate.

Life Estate

(R) An interest that lasts only for the life of the interest holder. If the life estate is measured by the life of another person, however, that life estate will be pur autre vie. Duties and rights of life tenants include that a life tenant cannot injure interests of remainder or reversion holder, which can be present through the mechanics of waste.

Offer

(R) An offer is an objective manifestation of a present intent to contract, which creates the power of acceptance in the offeree. Enough essential terms must be included to allow a court to enforce the contract. Land requires price and identification of land, while employment contracts require duration of employment. Additionally, the offeree must know of the offer and have the power to accept it.

Termination of Offer

(R) An offer may be terminated by an act of a party or by operation of law. Acts of parties includes revocation by the offeror, rejection by the offeree, or lapse of time. Operation of law includes death or insanity of either party, destruction of proposed contracts subject matter, or supervening illegality.

Acceptance - By performance

(R) An offeree may accept by partial performance (for bilateral contracts) or complete performance (for unilateral contracts), unless acceptance is limited by the terms of the offer. With respect to bilateral contracts, partial performance may give rise to acceptance but the offeree must make the offeror aware of acceptance. On the other hand, unilateral contracts require complete performance. Although complete performance is required, the offeree is not obligated to complete performance, and the failure to complete performance does not gives rise to breach. However, once performance has begun (no notice required), the offer may not be revoked until the completion, which must be made within a reasonable time. **NOTE: (R) An offer requiring acceptance by promise may still be accepted by performance if: (1) the offeree beings to perform, and the offeror learns that the offeree has started performance and acquiesces.

Termination of Offer - Revocation

(R) An offeror may revoke her offer, which effectively terminates the offer and the offeree's power of acceptance. Revocation is only effective upon receipt by offeree, and it cannot be revoked once it has been accepted. An irrevocable offer is created through the mechanics of an option contract, a UCC firm offer, or detrimental reliance by the offeree. With respect to unilateral offers, the start of performance makes the offer irrevocable for a reasonable time to complete performance, but the start of performance must go beyond mere preparation. UCC Firm Offer (R) A merchant offers to sell goods in a signed writing and gives assurances that offer will be held open, it is irrevocable for designated period or up to three months; no consideration is required.

Contract - Bilateral

(R) Anything other than a unilateral contract.

Assignments - Revocability

(R) Assignments for consideration are irrevocable. Gratuitous assignments, however, are revocable unless: (1) obligor has already performed, (2) a tangible claim or writing is delivered to assignee, or (3) detrimental reliance by the assignee. Gratuitous assignments may be revoked or terminated by: (a) death or bankruptcy of assignor, (b) notice of revocation by assignor, (c) taking of performance by assignor, or (4) later assignment to another.

Rule of Destructibility

(R) At COMMON LAW, a contingent remainder is destroyed if it remains contingent - i.e. the condition is not satisfied - when the preceding estate ends. Under MODERN LAW, however, gives a reversion to grantor or grantor's heirs until grantee satisfies the condition.

Tenant's Duties at COMMON LAW

(R) At COMMON LAW, a tenant has a duty to: (1) repair, (2) pay rent, (3) not use the property for illegal purposes, and (3) owes a duty to third parties.

Merger (Shelley's Rule)

(R) At COMMON LAW, the remainder merges and A has a fee simple absolute. Under MODERN LAW, however, A has a life estate and A's heirs have contingent remainders. Example: "O grants to 'A for life, then to A's heirs' and A is alive" Note: O - Has a reversion because A could die without heirs.

Miscellaneous Adverse Possession Rules - Govt. Land

(R) Cannot be acquired through adverse possession

Special Use Permits

(R) Certain property uses require a special use permit even where zoning generally allows the type of use.

Adverse Possession - Concurrent owners

(R) Co-tenants may not adversely possess each others' interests unless ouster has occurred for a statutory period that begins once exclusion begins.

Termination of Offer - Conditional Acceptance

(R) Conditional acceptance terminates the original offer and becomes a new offer. Look for: 1. "If" 2. "Only if" 3. "But" 4. "Provided" 5. "So long as"

Conditions and Nonoccurrence of Conditions

(R) Conditions are agreed-upon limitations on performance. Conditions may be express or implied. If a condition exists, it must be strictly complied with; but substantial performance of the condition may suffice if it fulfills condition's purpose. Condition Precedent - (R) Performance is not obligated unless condition occurs; non-occurrence excuses performance. Condition Subsequent - (R) Condition that occurs after performance has begun and excuses further performance.

Exactions

(R) Conditions for govt. approval of anew development. Condition is usually a payment or gift of property to govt. to offset the development's demands on public services. Exactions are unconstitutional unless they satisfy the following: (1) nexus - there must be a rational relationship between the exaction sought by the govt. and the burden on public facilities, and (2) proportionality - the exaction must reasonably relate, in nature and scope, to the impact of the development.

Consideration

(R) Consideration is a bargained-for legal detriment, which must be incurred by each party to a contract. A legal detriment may be incurred by either a promise, forebearance, or performance. That is, the promise must induce the detriment and the detriment must induce the promise. A legal detriment is incurred where the obligation to do or refrain from doing something one would not otherwise be obligated to do or refrain from doing.

Consideration - Not required

(R) Consideration is not required where a modification has occurred under the UCC (good faith requirement) or a past debt is barred by the SOL, but a new written promise to fulfill the debt is made (terms of the written promise control).

Standard Money Damages

(R) Contract damages generally involve compensatory damages, which includes: (1) expectation damages, (2) reliance damages, and (3) a duty to mitigate. Expectation Damages - (R) This is a standard measure of money damages that puts the parties in the economic position as if the contract had been performed. Reliance Damages - (R) An alternative measure of damages is reliance damages, which is awarded when damages are too speculative. Reliance damages are designed to compensate the plaintiff based on the value of her performance. Mitigation - (R) Where damages are available, the non-breaching party must take reasonable steps to mitigate the damage. Damages are NOT recoverable for loss that the injured party could have avoided without undue risk, burden, or humiliation. The injured party CAN recovery from reasonable, albeit unsuccessful efforts to avoid loss.

Statute of Frauds - Requirements

(R) Contracts subject to the SOF require special proof of their existence. That means, there must be a writing, signed by the party against whom enforcement is sought. Writing - (R) To meet the writing requirement, it must: (1) identify the subject matter, (2) indicate that a contract was made, and (3) specify the essential terms. In the land context, the essential terms required are the price and a description of the land, whereas in the employment context, the duration of employment must be determined. Signed - (R) A signature is a mark made with the intention to operate as a signature. Under the UCC, a party's initials or letterhead is sufficient.

Statute of Frauds - MYLEGS

(R) Contracts that fall within the statute of frauds include: marriage contracts, service contracts that are incapable of being performed within 1 year, land contracts, executor promises, suretyship contracts, and contracts for the sale of goods of $500 or more.

Defense to Contract Formation - Unconscionability

(R) Courts may refuse to enforce all or part of a contract that is unfair or oppressive to one party based on unfair bargaining and/or unfair substantive terms. This includes contracts of adhesion, exculpatory clauses for intentional acts, etc. Look for: Absent meaningful choice by disadvantaged party.

Defense to Contract Formation - Duress

(R) Duress includes both physical and economical duress. Contracts induced by physical duress are void. While, contracts induced by non-physical coercion or threats are voidable.

Termination of Easement - Release

(R) Easement holder can terminate the easement by giving a deed of release to the servient tenement owner.

Termination of Easement - Abandonment

(R) Easement is terminated if its holder physically demonstrates an intent to permanently abandon it. Mere words or nonuse are insufficient

Termination of Easement - Merger

(R) Easement terminates automatically if one person acquires title of both the easement and the servient land. Re-dividing the merged title will not revive easement.

Termination of Easement - Necessity ends

(R) Easements by necessity expire when the need that created them ends.

Implied promises in land sale contracts

(R) Every land sale contract contains two implied promises: (1) promises to provide marketable title, and (2) promises to disclose and make no material false statements.

Parol Evidence Rule

(R) Evidence extrinsic to a written agreement, that is intended to express complete and final agreement, is inadmissible to supplement or contradict the written agreement. Therefore, negotiations or agreements, either oral or written, before the contract becomes integration are inadmissible. This does not apply, however, where the written agreement was only partially integrated, or additional terms would ordinarily be in a separate agreement.

Accord and Satisfaction

(R) Exists when both parties to an existing agreement agree to accept different performance in satisfaction of the obligation. Specifically, an accord is an agreement to accept alternative performance in satisfaction of the existing obligation, and satisfaction is the completion of the alternative performance. The effect of a valid accord and satisfaction, excuses the original obligation.

Recording Statutes - Race

(R) First grantee to record prevails, regardless of whether the buyer is a BFP. Sample Language: "No conveyance or mortgage of an interest in land shall be valid against a subsequent purchaser whose conveyance is first recorded"

Recording Statutes - Race-Notice

(R) First subsequent BFP to record prevails. Sample Language: "No conveyance or mortgage of an interest in land shall be valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded"

Governing Law - Mixed

(R) For contracts involving both goods and services, the predominant purpose of the contract dictates the applicable law except where the contract divides payment between the goods and the services, in which, the UCC applies to the goods portion, and the CL to the remainder.

Deed - General warranty

(R) General warranty deeds include six covenants for title: (1) present covenants - only breached at time of delivery, and (2) future covenants - only breached after delivery. Present covenants include seisin, right to convey, and against encumbrances. Future covenants include quiet enjoyment, warranty, and further assurances. PRESENT Seisin - (R) Grantor covenants that he is the rightful owner and that deed covers described land. Right to convey - (R) Grantor covenants that he has the right to convey Against encumbrances - (R) Grantor covenants that the land is free from encumbrances . FUTURE Quiet enjoyment - (R) Grantor covenants that grantee will not be disturbed by third party's claim of lawful title. Warranty - (R) Grantor agrees to defend against lawful claims of title by others Further assurances - (R) Grantor promises to perform future acts reasonably necessary to perfect the title conveyed.

Perfect Tender - Revocation of Acceptance

(R) Generally, a buyer cannot reject goods once he has accepted them, except where revocation is made within a reasonable time after discovering a defect if the defect substantially impairs the goods' value and either: (1) buyer accepted goods on the reasonable belief that defect would be cured and it has not been, or (2) buyer was excusably ignorant to defect or reasonably relied on seller's assurance that goods conformed.

Offer - Advertisements

(R) Generally, advertisements are not offers, unless they are highly specific as to quantity and clearly indicate who may accept.

Delegation

(R) Generally, all duties may be delegated except those involving: (1) personal judgment and skill, (2) delegation changes the expectancy in a requirement or output contract, (3) a party has placed special trust in the delegator, or (4) a contract provision restricts delegation. Note, however, in order to delegate, the obligee must generally accept performance from delegee, and only duties may be delegated, not rights. Liability - (R) Delegator remains liable for delagee's performance and thereby an obligee sue the delegator for non-performance by delegee, and may only sue the delegee directly if the delegee has assumed duties of the entire contract.

Governing Law - UCC

(R) Governs the sale of goods. Goods are moveable items. **Special rules apply where both parties are merchants.

Defeasible Fees - FSCS

(R) Grantor retains the power to terminate grantee's estate upon the happening of some given event or condition. The Grantor retains a right of reentry. Absolute restrains on alienation are void. Example: To A, but if he wins the lottery, grantor reserves the right to reenter and retake.

Insecurity

(R) Grounds for insecurity or uncertainty must be reasonable. An insecure party's options are: (1) demand adequate assurances, or (2) suspend performance - if commercially reasonable - until she receives adequate assurances.

Defense to contract formation - Statute of Frauds

(R) If a contract is within the SOF, and it must satisfy the SOF requirements to be enforceable.

Statute of Frauds - Confirmatory Memo Exception

(R) If a goods contract falls within the SOF, but does not meet the SOF requirements, it will be enforceable BETWEEN MERCHANTS if: (1) a writing was sent, (2) the other party had reason to know of its terms, and (3) the receiving party did not object within 10 days of receipt.

Recording Statutes

(R) If a prior conveyance or interest is not recorded, a subsequent purchaser/mortgagee may be protected under a recording statute. The level of protection depends on the type of recording statute. There are three types of recording statutes: (1) notice, (2) race-notice, and (3) race.

Landlord's Remedies for Tenant Breach

(R) If a tenant breaches his leasehold duties, the landlord's options depend on whether tenant retains possession, i.e. remains on premises. If the tenant retains possession, the landlord may: file for notice of eviction or continue the lease and sure for rent due. On the other hand, if the tenant abandons the premises, the landlord may: surrender - release the tenant from the lease, ignore (MINORITY RULE) - hold tenant liable for unpaid rent, or re-let (MAJORITY RULE) - lease premises to new tenants and hold the breaching tenant liable for any losses. Note: A landlord may not engage in self-help upon the tenant's breach, that is, they cannot forcibly remove the tenant or tenant's belongings, etc. Security Deposit: (R) A landlord must return deposit to tenant once lease terminates, however, a landlord may subtract damages she has suffered.

Perfect Tender - Seller's Ability to Cure

(R) If buyer has notified of imperfect tender, seller may have an opportunity to cure IF: (1) seller gives buyer notice of intent to cure and time for performance has not yet expired - seller must give buyer reasonable notice and deliver conforming goods, or (2) seller had reasonable grounds to believe nonconforming goods sent would be acceptable - reasonableness is usually based on seller's prior dealings with buyer, or seller will have additional reasonable time period to tender conforming goods. **Note: Buyer cannot compel seller to cure.

Termination of Easement - Expiration

(R) If easement was established for set term, or to expire upon stated conditions, expiration of the term or occurrence of the stated conditions will terminate easement.

Statute of Frauds - Specially Manufactured Goods Exception

(R) If goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the sellers business, then the contract is enforceable if the seller has: (1) made a substantial beginning in their manufacture, or (2) made commitments for their purchase before notice of repudiation.

Substantial Performance

(R) If one party has substantially performed, the other party is obligated to performa and complete performance. Substantial is usually considered at least halfway complete.

Tenant's Duties at COMMON LAW - Duty to not use property for illegal purposes

(R) If tenant uses premises for an illegal purpose, landlord may terminate lease or obtain damages and injunctive relief. Occasional, minor illegal activities do not constitute a breach.

Defense to Contract Formation - Illegality

(R) If the subject matter or purpose for a contract is illegal, the contract will not be enforceable, which is based on existing law at the time of the contract formation. The contract is only enforceable by one who did not know about its illegal purpose.

Third Party Beneficiaries

(R) If two parties contract with some intent of benefitting a third party, that third party is a third party beneficiary (TPB). A TPB is not a party to the contract. There are two types of TPB - intended and incidental. One becomes an intended TPB to a contract if they are either: (1) expressly designated in the contract, (2) directly benefit from some performance under the contract, or (3) stand in such a relationship to the promisee under the contract that an intent to benefit the third party can be inferred. On the other hand, an incidental beneficiary is one who is not an intended beneficiary. Intended and incidental beneficiaries have different rights.

Standard Damages - Incidental/Consequential

(R) In addition to standard damage measures, incidental and consequential damages may be recovered. Incidental damages are damages that are incurred by the non-breaching party for commercially reasonable expenses such as cost of inspecting, returning, storing, reselling goods, etc. Under the UCC, both parties may recover incidental damages. Consequential damages, however, are foreseeable losses indirectly resulting from the breach, and are recoverable if: (1) damage was foreseeable result of the breach, and (2) when the contract was formed, the breaching party had reason to know the non-breaching party would suffer special, unpreventable, or unexpected damages. Under the UCC, consequential damages are only available to the buyer.

Joint Tenancy

(R) In order for a JT to be created, four conditions must concurrently exists when the tenants take their interest: (1) time - JT's must take their interest at the same time, (2) Title - JTs must receive their conveyance through the same instrument, (3) Interest - JTs must take equal and identical interests, and (4) Possession - JTs must have equal right to possessory rights. The grantor must expressly intend to create a JT; otherwise, a TIC is presumed. JT's are transferable, but not devisable or descenbile. JT, further, provides a right of survivorship.

Rights of Third Party Beneficiaries

(R) In order to enforce rights under a contract, a TPB's rights must vest. Vesting occurs when either: (1) the TPB assents to the promise in a manner requested by the parties to the contract, (2) the TPB brings suit to enforce the promise, or (3) the TPB materially changes positions in justifiable reliance on the promise. **NOTE: 1. TPB can sue the PROMISOR 2. PROMISEE can sue PROMISOR (legal/equitable) 3. TPB can ONLY sue PROMISEE if TPB is a creditor beneficiary.

Non-Monetary Remedies

(R) In the event of a breach, certain non-monetary damages may be available if money damages are unavailable or inadequate such as specific performance or reclamation.

Defense to contract formation - Incapacity

(R) Infants and mentally incompetent persons lack capacity to contract. This includes intoxicated persons if the other party has reason to know of intoxication. Under these circumstances, a person who lacked capacity to contract may disaffirm the contract, which renders it void. However, a contract can be enforced against an infant at the time of contract formation if she has since gained capacity and retained benefits of the contracts. Additionally, infants are liable for necessities such as, food, clothes, and medical care based on the theory of quasi-contract.

Perfect Tender - Installment Contracts

(R) Installment contracts authorize or require delivery of goods in separate lots. Under an installment contract, a buyer's ability to reject goods due to imperfect tender is limited.

Water Rights in Watercourses

(R) Land bordering watercourses is governed by either the riparian doctrine or the prior appropriation doctrine. Under the riparian doctrine, water belongs to those who own land bordering the watercourse. There are two theories: (1) reasonable use theory - MAJORITY, and (2) natural flow theory - MINORITY. Under the majority view, riparian owners share rights to reasonable use and are liable to other owners fi their use unreasonably interferes with other owners' use. Under the minority view, riparian owners may be enjoined for any use resulting in a substantial or material reduction in others' water quantity or quality. Prior appropriation doctrine - (R) Water rights are acquired by actual use. Priority of beneficial use determines rights to water.

Land Sale Contracts and Conveyances

(R) Land sale contracts are subject to the SOF and therefore must be: (1) in writing, (2) signed by the party against whom enforcement is sought, and (3) articulate essential terms. There is a major exceptions, however, where partial performance exists. A land sale contract is outside the SOF if the buyer takes possession and either: (a) pays all or part of the purchase price, or (b) makes substantial improvements. Process: 1. Contract 2. Escrow period 3. Closing 4. Conveyances

Landlord's Duties and Warranties - Quiet Enjoyment (Retaliatory Eviction)

(R) Landlord is prohibited from retaliatory eviction if a tenant lawfully reports housing code violations.

Landlord's Duties and Warranties - Quiet Enjoyment (Actual Eviction)

(R) Landlord wrongfully evicts or excludes tenant from property.

Landlord's Duties and Warranties - Quiet Enjoyment (Constructive Eviction)

(R) Landlord's actions or inactions render the property uninhabitable. The following elements must be present for a constructive eviction to be present: (1) substantial interference - major and/or chronic problems, (2) notice - tenant must inform the landlord and give him a reasonable opportunity to repair; landlord must fail to act meaningfully, and (3) vacate - tenant must vacate within a reasonable period after the landlord fails to repair.

Landlord's Duties and Warranties

(R) Landlord's have the following duties to tenant: (1) duty to deliver possession, (2) implied covenant of quiet enjoyment, (3) implied warranty of habitability, and (4) tort liability.

Variances

(R) Landowners can get govt. permission to be exempt or vary from literal restrictions of a zoning ordinance. To qualify for a variance, a landowner must show: (1) undue hardship, and (2) variance will not negatively impact surrounding property values.

Assignment and Subleases - Provisions

(R) Lease provision restricting assignment or sublease are enforceable, but generally construed against landlords. Once a landlord gives a tenant permission to assign or sublet, such provisions are thereafter waived.

Life Estate - Doctrine of Waste (Permissive)

(R) Life tenant has a duty to repair and maintain property up to extent of income and profits derived from land or rental value of land. Failure to do so constitutes permissive waste.

Liquidated Damages

(R) Liquidated damages are damages that are agreed-upon in the contract, which stipulate specific damages upon the occurrence of a breach. Liquidated damages are only valid if: (1) damages are difficult to project at time of contract formation, and (2) the provision is a reasonable estimate of actual damages.

Reciprocal Negative Servitudes

(R) Lot owners in residential subdivisions may enforce restrictions on the use of property against other subdivision lot owners. This may be implied from a common development scheme of a residential subdivision. A reciprocal negative servitude may be implied if, when sales began, the developer had a general scheme for all parcels of the subdivision, including the subject lot. This may be evidenced through: recorded plat, general pattern of restrictions, or oral representations to early buyers. Further, a reciprocal negative servitude can be implied by notice. Where the owner of the subject lot had notice of the covenants in the deeds of other subdivision lots - actual, inquiry, or constructive.

Implied promises in land sale contracts - Marketable title

(R) Marketable title in implied in every land sale contracts and provides that the title is free from risk of litigation. That is, the title is free from being acquired by adverse possession, encumbrances, and zoning ordinance violations.

Defense to Contract Formation - Misrepresentation

(R) Misrepresentation includes a false assertion, concealment, or misstatements about a material fact before the formation of a contract. If found, the contract will be voidable if one party induces the other into a contract by misrepresentation and the induced party relies on the misrepresentation.

Real Estate Agents and Brokers

(R) Most real property sales are negotiated by real estate brokers. Seller's Agent - (R) Broker who obtains listing from seller has a fiduciary duty to seller and earns commission from sale of property once the sale closes. Buyer's Agent - (R) Primary relationship is with buyer. Typically, the buyer's agent is compensated by receiving a portion of the listing broker's commission. The buyer's agent owes a fiduciary duty to seller because buyer's agent is technically a subagent of the seller's agent. Duty to disclose - (R) Agents have a duty to disclose material information about which they have actual knowledge

Zoning ordinances

(R) Must be reasonably related to the public welfare, not too restrictive, and not racially discriminatory.

Negative Easements

(R) Negative easements entitle the holder to prevent the servient landowner from engaging in otherwise permissible actions on his own land. A negative easement may only be created by express grant - writing signed by grantor. Four categories of acts may be prevented: (1) light, (2) air, (3) support, (4) and stream of water from an artificial flow.

Rule Against Perpetuities (RAP)

(R) No property interest is valid unless it must vest, if at all, no later than 21 years after the death of a life in being at the time the interest was created. That is, a future interest is void if there is any possibility, no matter how remote, that it will vest more than 21 years after the death of the measuring life. RAP Applies To: 1. Contingent Remainders 2. EI 3. Vested remainder subject to open 4. Option and rights of first refusal 5. Powers of appointment How to Analyze: 1. Determine the interest 2. Apply RAP 3. If conveyance violates RAP, strike only the violating portion

Quasi-Contract

(R) Not a contract, but rather implied, which usually arises when there is an unenforceable agreement, but one side has realized a benefit. Look for: 1. P has conferred a benefit to D 2. P reasonably expects to be paid 3. D knowingly accepted the bargain 4. D will be unjustly enriched if P is not compensated

Contract - Unilateral

(R) Offer expressly requires performance as the only manner of acceptance

Offer - UCC

(R) Offers involving goods require that quantity terms must be certain or capable of being made certain. Under requirement/output contracts, no unreasonable disproportionate increase in quantity allowed. Furthermore, missing terms are ok if it appears the parties intended to make a contract, as the court may use gap fillers to fill in the missing terms.

Tenancy at Sufferance - Landlord Options

(R) Once a lease expires and the tenant is still in possession of the property giving rise to a tenancy at sufferance, a landlord may either: (1) sue to evict, or (2) impose a new periodic tenancy. If the landlord choses option 2, the landlord can demand higher rent for both the holdover period and any new periodic tenancy if he gave notice of the increase before the lease expired or in commercial leases, if the expired lease was for one year or longer, the new periodic tenancy can be year-to-year. EXCEPTION: (R) Imposing a new periodic tenancy must be reasonable. A new periodic tenancy is unreasonable if: (a) the tenant only remains in possession for a few hours, (b) the tenant is not at fault for delay in vacating - i.e. illness, or (c) seasonal leases.

Fixtures

(R) Once-moveable chattel that is annexed (attached) to real property, indicating an intent to permanently improve property it becomes a fixture. If a tenant removes fixtures he commits voluntary waste. Fixtures pass with ownership of the land. Tenant installation qualifies as a fixture if there is an express agreement between the landlord and tenant - if no agreement, tenant may remove the chattel that tenant installed as long as removal does not cause substantial harm to the property.

Chain of Title Problems - Estoppel by Deed

(R) One who conveys land in which she has no interest is estopped from denying the validity of the conveyance is she subsequently acquires the same interest. Estoppel by deed seeks to prevent one from fraudulently conveying land and later validly acquiring it.

Chain of Title Problems - Shelter Rule

(R) One who takes from a BFP will prevail against any interest the transferor-BFP would have prevailed against, even if the transferee had actual notice of a prior conveyance. The shelter rules seeks to protect donees, heirs, or devisees of BFP's who cannot qualify as BFP's and would not otherwise receive protection under notice or race-notice statutes.

Statute of Frauds - Other Exceptions

(R) Other exceptions to the SOF include judicial admissions (statements proving a contract under oat) or promissory estoppel.

Lateral Support

(R) Ownership of land includes the right to have land supported in its natural state by adjoining land; landowners can be liable for excavations that cause damage to adjacent land. Under this doctrine, a plaintiff may bring claims under two theories: (1) negligence - excavating owner is only liable if he acted negligently, or (2) strict liability - plaintiff must show his land would have collapsed, even in its natural state, due to D's excavations.

Foreclosure & Multiple Creditors/Interests - Purchase Money Mortgages (PMM)

(R) PMM's are superior to all interests. A PMM is a mortgage given in exchange for funds used to buy the property; property is given either to the seller as part of the purchase price or to a third-party lender (if both, seller's PMM is senior to the third-party lender).

Statute of Frauds - Performance Exception

(R) Performance may be an adequate exception to the SOF, under three types of contracts: service contracts, sale of goods, and real estate. Service - (R) If a service contract falls within the SOF, but does not meet the SOF requirements, it cannot be enforced unless and until full performance is rendered. Land - (R) If land contract does not satisfy the SOF, most jurisdictions will enforce the contract if at least two of the following are met: (1) payment (in whole or in part), (2) possession, and/or (3) valuable improvements have been made on the land. Goods (UCC) - (R) If a goods contracts falls within the SOF, but does not meet the SOF requirements, it will be enforceable if: (1) goods are either received and accepted, or (2) paid for.

Consideration - Substitute

(R) Promissory estoppel is a substitution to consideration. Under this theory, a court may enforce a promise if: (1) the promisor reasonably expects reliance by promisee, (2) promisee acts or refrains from acting such that his reliance is detrimental, and (3) injustice will occur without enforcement of the promise.

Defeasible Fees - FSD

(R) Property automatically terminates and reverts back to the grantor upon the happening of a given event or condition. Grantor retains a possibility of reverter. Absolute restraints on alienation are void. Hint: Phrases such as 1. "For so long as" 2. "While" 3. "During" 4. "Until" Example: If A stops practicing law, property automatically reverts back to grantor.

Defeasible Fees - FSEI

(R) Property automatically transfers to a third party upon the happening of a given event or condition. The third party holds the shifting executory interest. Absolute restraints on alienation are void. Example: "To A, but if A is ever arrested, then to B"

RAP - Special Considerations (Charity-to-Charity)

(R) RAP does not apply to conveyances from one charity to another.

Termination of Offer - Rejection

(R) Rejection by offeree terminates the offer and the offeree's power of acceptance. An offeree may reject expressly, by counter-offer, conditional acceptance, or acceptance with additional terms (CL only).

Rescission

(R) Rescission arises if some performance obligation remains for each party and they both agree to rescind the contract; mutual cancellation. Mutual rescission, must be supported by consideration, unless it is governed the UCC.

Restitution

(R) Restitution damages arise under quasi-contracts. It is applied if there is no enforceable contract and a party has been unjustly enriched, and awards the value based on the benefit wrongfully conferred.

UCC Default Terms - Risk of Loss

(R) Risk of loss arises if goods are lost or destroyed by no fault of either party after contract formation, but before the buyer receives goods. Factors determining the risk of loss (in order of priority) include: (1) prior agreement of the parties, (2) breach, (3) common carrier, (4) default. In the event of default, a merchant seller's risk of loss shifts to buyer once he takes physical possession of goods, while a non-merchant seller's risk of loss shifts to buyer upon tendering delivery.

UCC Default Terms - Delivery

(R) Seller's delivery obligation if goods shipped by common carrier are controlled by whether it is either: a shipment contract or a destination contract. Shipment Contract (indicated by FOB - seller's city) - (R) Seller's delivery obligation is satisfied when the seller: (1) delivers goods to a common carrier, (2) makes reasonable arrangements to deliver, and (3) notifies the buyer. Once the seller completes his obligation, the risk of loss passes to buyer. Destination Contract (anything not FOB) - (R) Seller's delivery obligation satisfied only when goods arrive at buyer's location.

Joint Tenancy - Severance/Transfer

(R) Severance by any JT creates a TIC with respect to the severed interest. Moreover, a JT interest becomes a TIC upon transfer; this does not destroy the entire JT if two or more JT's remain.

Non-Monetary Remedies - Specific Performance

(R) Specific performance is available only in contracts involving either real estate or unique goods. The five factors for granting specific performance include: (1) Inadequacy of the available legal remedies (2) Likelihood of further performance by the party seeking enforcement of the contract (3) Ability of the breaching party to render performance (4) Balance of the interests and relative hardships of the parties (5) Any potential difficulties in supervision or enforcement of the decree.

Tenant's Duties at COMMON LAW - Liability to third parties (in tort)

(R) Tenant is liable for injuries sustained by third parties invited by tenant EVEN IF landlord promised to make repairs.

Covenant - Termination

(R) Termination of a covenant can occur by: (1) written release, (2) merger of benefited and burdened estates, or (3) condemnation of burdened property.

Joint Tenancy - Mortgage

(R) The MAJORITY (lien theory), holding that a JT can take a mortgage on her interest without severing JT because no title passes to mortgagee. The MINORITY (title theory) holds, however, JT is severed if any JT takes a mortgage on her interest because title passes to the mortgagee.

Doctrine of Worthier Title

(R) The contingent remainder in O's heir is void; A instead has a life estate and O has a reversion. Example: "O conveys 'to A for life, then to O's heirs'"

Life Estate - Doctrine of Waste

(R) The doctrine of waste holds that a life tenant cannot injure the interests of a remainder or the reversion holder. There are three forms of waste: (1) affirmative, (2) permissive, and (3) ameliorative.

Co-Tenants Rights and Duties

(R) The following rules generally apply to concurrent estate tenants: 1. Possession - each co-tenant (CT) has rights to possess the whole 2. Rent from a CT in exclusive possession - a CT in exclusive possession is not liable to CT for rent. 3. Rent from third parties - a CT leasing premises out must account to CT for their share of rental income. 4. Adverse Possession - Tenants may not acquire title to the exclusion of CT through adverse possession. 5. Carrying Costs - each tenant is responsible for his fair share of taxes, interests, etc. 6. Repairs - CT may seek contribution for reasonable repairs, but must inform CT before making repairs. 7. Improvements - no right to contribution for improvements; but CT are entitled to credit for an increase in value attributable to the improvement (and also liable for any resulting loss) 8. Waste - a CT can bring an action for waste against another CT during the life of the tenancy. 9. Partition/Forced sale - JT's and TIC may bring an action for partition, or seek a forced sale and apportion the proceeds.

Novation

(R) The original party is excused form performance and no longer has any contract obligations or liability if BOTH the parties agree to substitute a new party to perform. **NOTE: Delegation ONLY requires agreement from ONE PARTY and does NOT excuse the delegator's liability on the contract.

RAP - Special Considerations (Fertile Octogenarian)

(R) The presumption that any woman is capable of giving birth, regardless of her age or condition.

Foreclosure & Multiple Creditors/Interests - Senior/Junior

(R) The priority of creditors depends of who records their interest first because recorded interests take priority in the order recorded. Interests can be classified as either senior or junior. Senior interests are unaffected by junior interest foreclosures, and therefore the buyer of foreclosed property takes it subject to senior interests. On the other hand, become terminated by foreclosure of a superior claim. Accordingly, foreclosure terminates all junior interests, and therefore junior interest holders cannot look to the land to satisfy debts. However, junior interests are necessary parties and must be included in a senior foreclosure action. **NOTE: Creditors can agree to subordinate priority to a junior creditor.

Implied promises in land sale contracts - Promise to disclose and make no material false statements

(R) The seller must not materially misrepresent facts or make false statements concerning the property. The seller must disclose latent material defects. The seller cannot limit liability through disclaimers. With respect to NEW property, the seller/builder is subject to an implied warranty of fitness/quality in construction.

Tenancy by the Entirety - Severance

(R) There are four ways in which a tenancy by the entirety can be severed, which created a TIC: (1) death of one co-tenant, (2) mutual agreement of the parties in writing, (3) issuance of a divorce decree, or (4) execution by a joint creditor, e.g., foreclosure.

Deed - Types

(R) There are three types of deeds: (1) general warranty, (2) special warranty, and (3) quitclaim.

Future Interest

(R) There are two categories of future interests: (1) future interests in the grantor, and (2) future interests in grantees or third persons.

UCC Default Terms - Warranties

(R) There three types of warranties: (1) express, (2) implied warranty of merchantability, and (3) implied warranty of fitness for a particular purpose. These warranties, however, may be limited by the contract through either: a disclaimer, which limits liability only for implied warranties, or a remedy limitation, which limits recovery upon breach of warranty. Express - (R) Exists when the seller makes promises or describes facts about a product or its use. A warranty will be breached if the product falls short of seller's promise or description. IWM - (R) Where a merchant sells goods, an IWM automatically warrants goods as being fit for their ordinary purpose. IWF - (R) Seller warrants that goods are fit for a buyer's purpose if: (1) the buyer has a particular purpose, (2) buyer relies on seller to select suitable goods, and (3) seller has reason to know of buyer's purpose and reliance on seller.

Miscellaneous Adverse Possession Rules - Non-marketable title

(R) Title taken by adverse possession is not marketable, unless there has been an action to quiet title.

Governing Law - Common Law

(R) Transactions not involving goods, including the sale of land and services.

Modification

(R) Under COMMON LAW, parties to a contract may agree to accept a new agreement in place of the existing contract if there is further consideration unless (1) fair and equitable, and (2) due to circumstances that were unanticipated when contract was formed. Under the UCC, however, modifications do not require further consideration, but rather, good faith. Note, too, that if the modification is for $500 or more, it must fall within the SOF.

Landlord's Duties and Warranties - Deliver Possession

(R) Under the MAJORITY RULE, a landlord must deliver actual possession. Under the MINORITY RULE, however, the landlord must only deliver legal possession, and thereby the tenant is responsible for any holdovers on property. If the landlord breaches this duty owed to the tenant, the tenant may seek monetary damages.

Non-Monetary Remedies - Reclamation

(R) Under the UCC, an unpaid seller may reclaim goods from a buyer if: (1) the buyer is insolvent at time of delivery, (2) seller demands return of goods within 10 days of delivery, and (3) buyer still has possession of goods. **NOTE: An unpaid seller can never reclaim goods from later buyers.

Landlord's Duties and Warranties - Implied Warranty of habitability

(R) Under the doctrine of IWH, a residential property must be fit for basic human dwelling. IWH is not applicable to commercial leases, and it cannot be modified by lease terms. If a landlord breaches his duty of IWH to a tenant, a tenant may: (1) move - vacate/terminate the lease, (2) repair - make reasonable repairs and deduct the costs from future rent, (3) reduce or withhold rent - tenant can reduce rent or stop payment until a court determines the fair rental value given the breach; tenant must place withheld rent in escrow, or (4) remain - tenant can remain in possession and seek money damages.

Subjacent Support

(R) Underground (subjacent) structures must support surface structures existing when the subjacent estate was created. Subjacent owners are strictly liable for failure to support pre-existing surface structures. Negligence standard applies for subjacent structures erected prior to surface structures.

Termination of Easement - Destruction of servient tenement

(R) Unless destruction results from willful conduct of the servient owner

Leasehold - Periodic Tenancy (Termination)

(R) When a tenant gives proper notice, a leasehold may be terminated. Effective notice is given when there is (1) sufficient time - tenant must give notice one full period in advance; year-to-year tenancies require six-month notice, and (2) effective date - must be at the end of the period of the tenancy. **Note: Parties can agree to modify these requirements.

Perfect Tender - Rejection of Non-Conforming Goods

(R) Where a buyer rejects imperfect tender, the buyer must: (1) notify seller of rejection in a reasonable time, (2) hold the rejected gods using reasonable time, or (3) give seller reasonable time to arrange for removal of goods - where this is silent, buyer can: return goods, store goods, or resell the goods on behalf of the seller.

Defense to Contract Formation - Mutual Mistake

(R) Where both parties are mistaken about an underlying factual assumption at the time of contract formation, the contract is voidable by an adversely affected party if: (1) both parties are mistaken, (2) mistake concerns a basic assumption of fact, (3) mistake materially affects the agreed-upon exchange, or (4) adversely affected party did not assume the risk of the mistake.

Defense to Contract Formation - Misunderstanding

(R) Where neither party or both parties is aware of an ambiguity, no contract is formed unless both parties intended the same meaning. If, however, one party is aware of the ambiguity, a contract is formed and is enforced according to the intention of the party unaware of the ambiguity.

Defense to Contract Formation - Unilateral Mistake

(R) Where one party makes a mistake concerning facts on an agreement; usually arises with computational errors. A unilateral mistake, however, will not prevent a contract formation, but the mistaken party may void the contract if mistake is material and the non-mistaken party knew or should have known of the mistake.

Consideration - Illusory Promise

(R) Where one party retains unlimited discretion to perform, there is not consideration.

Impossibility

(R) Where performance is objectively impossible, performance on a contract may be excused, if the impossibility arises from an unforeseen event after contract formation. Common unforeseen events: 1. Substantial damage or destruction to subject matter 2. Death (unless obligation is non-delegable) 3. Subsequent law or regulation

Impracticability

(R) Where performance is only possible with extreme and unreasonable difficulty or expense, performance on a contract may be excused, if the impracticability arises from an unforeseen event after contract formation. Common unforeseen events: 1. Substantial damage or destruction to subject matter 2. Death (unless obligation is non-delegable) 3. Subsequent law or regulation

Termination of Easement - Estoppel

(R) Where servient owner reasonably relies on an easement holder's conduct or representations indicating an intent to abandon the easement; non-use is sufficient.

Tenancy by the Entirety

(R) While only recognized is certain COMMON LAW jurisdictions, TBE is similar to JT, but it is a marital estate between a husband and wife. A TBE requires the same four unities as a JT. While there is a right to surviviorhship, unlike JT, there is no right of partition.

Miscellaneous Adverse Possession Rules - Restrictive covenants

(R) Will not run with the land if the adverse possessor's use of land violated the covenant; but covenant will run if the adverse possessor's use complied with the covenant.

RAP - Special Considerations (Right of first refusal/Class gift)

(R) With respect to rights of first refusal and RAP, a contingent interest in property violates RAP if they could possibly be exercised outside the time period allowed by RAP. As for class gifts and RAP, for a class gift to satisfy RAP, the class must be cloased with all conditions precedent satisfied for every member - the rule of convenience for class gifts may save a class that would otherwise violate RAP.

Assignment - Enforcement and Recovery

(R)An assignee can recover from the obligor unless consideration was made. Payment by obligor to an assignee, however, is effective until obligor knows of the assignment.

Life Estate - Doctrine of Waste (Affirmative)

(R)The life tenant cannot consume or exploit natural resources, except: (a) where necessary for repairs or maintenance of land, (b) when grant expressly gives the right to exploit, or (c) if land was used for exploitation prior to the grant - open mines doctrine; if extraction of materials was done on land before life estate began, life tenant may only extract from mines already open.

What is the test for determining whether gov't assistance to a religiously affiliated school is ok?

(i) secular purpose (ii) primary effect neutral on religion (iii) no excessive government entanglement with religion

For a state income tax on all of a citizen's income to be valid, what must first be shown?

(i) substantial nexus (ii) fair apportionment based on extent of property (iii) fair relationship between taxes and services provided.

(duty of loyalty) interested director?

(self-dealing) deal set aside unless director can show: 1. deal faith to the corp OR 2. interest is disclosed or known AND approved by a majority of disinterested D's or shareholders

Separate property? (6)

1 professional degree 2. life insurance proceeds 3. inter-spousal torts 4. child/spousal support obligations that are not the result of the marriage 5. disability 6. QCP

5TH AMENDMENT

1) 5th Amendment Privilege Against Self-Incrimination 2) Miranda Rights 3) Invoking Miranda Rights 4) Waiving Miranda Rights 5) Double Jeopardy 6) Double Jeopardy: Exceptions Permitting Re-Trial

6TH AMENDMENT RIGHT TO COUNSEL

1) 6th Amendment Right to Counsel 2) Pretrial Lineups & Showups

CRIMINAL LAW PRINCIPLES

1) Actus Reus 2) Mens Rea 3) Model Penal Code Mens Rea 4) Concurrence & Causation 5) Specific Intent Crimes 6) Accomplice Liability 7) Major Crimes & Requisite Mens Rea 8) Transferred Intent Doctrine 9) Merger

OTHER 4TH AMENDMENT SEARCHES

1) Administrative Searches 2) Public School Searches 3) Border Searches 4) Immigration Searches 5) Electronic Surveillance: Wiretapping & Eavesdropping

APPELLATE REVIEW

1) Appeals & Final Judgment Rule 2) Interlocutory Appeals 3) Extraordinary Writs

EQUAL PROTECTION

1) Application and Approach 2) Proving Discriminatory Classifications 3) Standards of Review 4) Classifications Based on Race or National Origin 5) Alienage Classifications 6) Gender & Non-Marital Classifications 7) Rational Basis Classifications 8) Right to Travel and Right to Vote Under EP

FEDERAL EXECUTIVE POWER

1) Appointment & Removal Process 2) Immunity, Executive Privilege & Pardon Power 3) Presidential Powers in Foreign Police: Treaties & Executive Agreements

4TH AMENDMENT

1) Arrests 2) Detentions 3) Validity of Search or Seizure 4) Reasonable Expectation of Privacy 5) Requirements for a Valid Search Warrant 6) Execution of Search Warrants

CRIMES AGAINST THE DWELLING

1) Arson 2) Burglary

CRIMES AGAINST THE PERSON

1) Assault 2) Battery 3) Rape 4) False Imprisonment 5) Kidnapping 6) Murder 7) Statutory Modifications to Common Law Murder 8) Felony Murder 9) Voluntary Manslaughter 10) Involuntary Manslaughter

WRITINGS & PHYSICAL EVIDENCE

1) Authentication 2) Best Evidence Rule

DUE PROCESS: BURDEN & SUFFICIENCY REQUIREMENTS

1) Burden of Proof 2) Sufficiency of Evidence 3) Plea Bargains

PRELIMINARY QUESTIONS

1) Civil or Criminal Case? 2) Which Party is Offering the Evidence? 3) What Particular Piece of Evidence is being Offered? a. Real - Physical b. Statement c. Diagram d. Document e. Circumstantial 4) For what purpose is the piece of evidence being offered? (i.e. What is the evidence being offered to prove?)

CLAIM & ISSUE PRECLUSION

1) Claim Preclusion (Res Judicata) 2) Issue Preclusion (Collateral Estoppel) 3) Issue Preclusion: Offensive & Defensive Use of Prior Judgment

CLASS ACTIONS

1) Class Action Overview 2) Types of Class Actions 3) Class Action Fairness Act (CAFA) 4) Class Action Certification 5) Class Action Settlement 6) Class Action Judgment

TESTIMONIAL EVIDENCE

1) Competency 2) Use of Documents by Witness During Testimony (a) Present Recollection Refreshed (b) Recorded Recollection 3) Objections to Form of Question or Testimony 4) Lay Opinion Testimony 5) Expert Opinion Testimony

PLEADINGS & MOTIONS

1) Complaint 2) Answer 3) Rule 12 Motion 4) Counter-Claim 5) Cross-Claim 6) Amending Pleadings 7) Amending Pleadings: Relation Back 8) Supplemental Pleadings 9) Rule 11 Certifications & Sanctions

CONFRONTATION CLAUSE

1) Confrontation Clause 2) Co-Defendant Statements

8th AMENDMENT CRUEL & UNUSUAL PUNISHMENT

1) Death Penalty

DISCOVERY

1) Discovery Overview 2) Conferences 3) Scope of Discovery 4) Mandatory Disclosures 5) Interrogatories 6) Requests for Production 7) Requests for Admission 8) Examinations 9) Depositions 10) Privileged Material 11) Protective Orders 12) Motions to Compel 13) Discovery Sanctions

EXCLUSIONARY RULE

1) Exclusionary Rule 2) Limitations on the Exclusionary Rule

1st AMENDMENT PROTECTIONS

1) Freedom of Religion 2) Freedom of Association: Membership & Disclosure Restrictions 3) Freedom of Association: Prohibiting Group Discrimination 4) Free Speech Framework 5) Speech in Public Forums 6) Speech in Limited/Designated Public Forums & Non-Public Forums 7) Prior Restraints 8) Vagueness & Overbreadth 9) Symbolic Speech

FUNDAMENTAL RIGHTS

1) Fundamental Rights & the Right to Privacy 2) Right to Abortion

PROTECTIONS OF INDIVIDUAL LIBERTIES

1) Government Action Requirement 2) Bill of Rights: Application to Federal & State Governments 3) Levels of Scrutiny

HEARSAY

1) Hearsay 2) Valid Non-Hearsay Uses of Out-of-Court Statements 3) Hearsay Exemptions

IMPEACHMENT

1) Impeachment Approach and Overview 2) Collateral Matters & Extrinsic Evidence 3) Impeachment by Contradiction or Prior Inconsistent Statement 4) Impeachment by Bias or Interest 5) Impeachment by Prior Misconduct or Reputation for Untruthfulness 6) Impeachment by Prior Conviction

LESSER PROTECTED CATEGORIES OF SPEECH

1) Incitement & Fighting Words 2) Obscenity 3) Obscenity & Profanity Regulations 4) Commercial Speech 5) Defamation

CAPACITY DEFENSES

1) Insanity 2) Infancy 3) Diminished Capacity 4) Intoxication

FEDERAL JUDICIAL POWER

1) Justiciability 2) Standing 3) 3P & Organization Standing 4) Ripeness & Mootness 5) Political Question Doctrine 6) Supreme Court Review 7) Sovereign Immunity

CRIMES AGAINST PROPERTY

1) Larceny 2) Embezzlement 3) False Pretenses 4) Larceny by Trick 5) Receipt of Stolen Property 6) Forgery 7) Robbery 8) Extortion

EXCLUSION OF RELEVANT EVIDENCE ON PUBLIC POLICY GROUNDS

1) Liability Insurance 2) Subsequent Remedial Measures or Repairs 3) Settlements, Offers to Settle, & Plea Bargaining 4) Payment or Offers to Pay Medical Expenses

FEDERAL LEGISLATIVE POWERS

1) Necessary & Proper Clause 2) Taxing and Spending Power, Police Power 3) Power to Regulate Commerce 4) 10th A Limitations on Congressional Power 5) Congressional Delegation of Powers 6) Speech or Debate Clause

MISCELLANEOUS DEFENSES

1) Necessity 2) Duress 3) Consent 4) Entrapment 5) Mistake of Law 6) Mistake of Fact

SUBJECT MATTER JURISDICTION

1) Overview 2) Diveristy Jx 3) Diversity Jx: Complete Diversity 4) Diversity Jx: Amount in Controversy 5) Federal Question Jx 6) Supplemental Jx 7) Removal Jx 8) Erie Doctrine

PERSONAL JURISDICTION "PJ"

1) Overview 2) Types of PJ 3) Statutory Limitations on PJ 4) Constitutional Limitations on PJ 5) Minimum Contacts 6) Fairness Factors for Minimum Contacts & General vs. Specific Jurisdiction 7) Notice Requirements 8) In Rem & Quasi In Rem Jurisdiction

JOINING CLAIMS AND PARTIES

1) Permissive Joinder of Parties 2) Compulsory Joinder of Parties 3) Impleader 4) Intervention 5) Interpleader

TRIAL RIGHTS & PROCEDURES

1) Pretrial Hearings & Bail 2) Grand Jury Proceedings 3) Right to a Speedy Trial 4) Right to a Jury Trial & Jury Requirements 5) Right to Confront Witnesses

DUE PROCESS

1) Procedural Due Process 2) Substantive Due Process 3) Economic Rights & The Contracts Clause 4) Ex Post Facto Clause & Bills of Attainder 5) Takings Clause

TRIAL, JUDGMENT, & POST TRIAL MOTIONS

1) Right to a Jury Trial & Voir Dire 2) Jury Instructions & Verdict 3) Judgment as a Matter of Law 4) Renewed Motion for Judgment as a Matter of Law 5) Motion for a New Trial 6) Motion to Set Aside Judgment or Order

VALID WARRANTLESS SEARCHES

1) Search Incident to Lawful Arrest (SILA) 2) Plain View Searches 3) Consent to Search 4) Automobile Search Exception 5) Automobile Stops & Police Checkpoints 6) Stop & Frisk 7) Exigent Circumstances: Hot Pursuit, Emergency & Evanescent Evidence

JUSTIFICATION DEFENSES

1) Self-Defense 2) Use of Force to Effectuate Arrest & Crime Prevention 3) Defense of Dwelling or Other Property

SERVICE OF PROCESS

1) Service of Process 2) Methods of Service of Process 3) Waiver of Service of Process 4) Exceptions to Service of Process Requirements

INCHOATE OFFENSES

1) Solicitation 2) Conspiracy 3) Co-Conspirator Liability & Withdrawal 4) Attempt

FEDERALISM

1) Supremacy Clause: Preemption & Intergovernmental Immunity 2) Dormant Commerce Clause (Negative Implications of the Commerce Clause) 3) Article IV Privilege and Immunities Clause 4) State Taxation of Interstate Commerce & Intergovernmental Immunity 5) Full Faith & Credit Clause

TESTIMONIAL PRIVILEGES

1) Testimonial Privileges 2) Attorney-Client Privilege 3) Doctor-Patient Privilege 4) Psychotherapist & Social Worker-Client Privilege 5) Spousal Testimonial Privilege 6) Marital Communications Privilege 7) 5th Amendment Privilege Against Self-Incrimination

VENUE

1) Venue 2) Transfer of Venue 3) Forum Non Conveniens

PRE-TRIAL ADJUDICATION

1) Voluntary Dismissal 2) Default & Default Judgment 4) Summary Judgment 5) Alternative Dispute Resolution (ADR) 6) Settlement

Character Evidence 4 Questions Approach

1) What is the purpose for which character evidence is being offered? 3 possibilities: a. Offered to prove character because character is an issue in the case. b. Offered to prove character as circumstantial evidence of a person's conduct on the occasion in question. c. Offered to impeach or support the credibility of a witness. 2) What method or technique is used to prove character? a. Specific Acts of Conduct--In CA allowed on direct and cross, FRE cross only b. Opinion c. Reputation 3) Is it a civil or criminal case? 4) Doe the evidence prove a pertinent character trait?

Character Evidence 4 Questions Approach

1) What is the purpose for which character evidence is being offered? 3 possibilities: a. Offered to prove character because character is an issue in the case. b. Offered to prove character as circumstantial evidence of a person's conduct on the occasion in question. c. Offered to impeach or support the credibility of a witness. 2) What method or technique is used to prove character? a. Specific Acts of Conduct--In CA allowed on direct and cross, FRE cross only b. Opinion c. Reputation 3) Is it a civil or criminal case? 4) Does the evidence prove a pertinent character trait?

separate property: surviving spouse takes? (3)

1. 1/3 if more than one child (or issue of child) 2. 1/2 if child 1 child or issue of child, or parent, or issue of parent - 1 child, 1 grand kid, either parent, brother or sister 3. all, if neither other condition (above) applies (but note that an omitted spouse never takes all SP, it's capped at 1/2 by statute)

common breaches of the duty of loyalty? (5)

1. 10b5 2. interested D's 3. competing ventures 4. corporate opportunity doctrine 5. improper loan

other ways to exclusde confessions? (3)

1. 14th amendment voluntariness (totality of circumstances) 2. 6th amedment rt. to counsel 3. fruits of illegal conduct- 4th amendment

Diligence + CA? (3)

1. A lawyer shall act with reasonable diligence, promptness and no neglect 2. must control workload so each matter handled competently CA- crimed to willfullt delay a clients suit, for lawyer's own gain

(SP) professional degree?

1. A professional degree or license remains the SP of the acquiring spouse.

Elements of Assault

1. Act by D that creates a reasonable apprehension in P of harmful or offensive contact to P's person. 2.Intent 3. Causation

False Imprisonment Elements

1. Act or Omission resulting in P's restraint or confinement. 2. P confined to a bounded area 3. Intent 4. Causation

ADVERSE POSSESSION

1. Adverse possession 2. Miscellaneous adverse possession 3. Adverse possession: tacking and concurrent owners

Parol Evidence Rules - Does not apply

1. Agreements (oral or written) made after the writing 2. Evidence necessary to determine fi there was a mistake in the process of reducing an agreement to writing. 3. Evidence concerning: misrepresentation, fraud, or duress 4. Evidence used to resolve ambiguities about the meaning parties intended to give particular terms in the writing.

merger/consolidations need? (2)

1. B of D' approval + notice to SH + SH approval (majority of shares entitled to vote) 2. no SH approval required for short form merger= 90% or more subsidiary merged

Van Camp? (3)

1. Business or economic factors produce the profits 2. CP gets salary for reasonable value of services of owner spouse 3. SP gets everything else

IIED Bystander claims

1. Bystander must be in

(impeachment of a witness) specifc instances in CEC civil? (2)

1. CEC has a strict ban on use of specific instances 2. may not even inquire into on cross to impeach

(CP) disability? (2)

1. CP if to replace assets acquired during marrige 2. exceptions to replace SP

torts of either spouse vs 3P (or criminal fines)?

1. CP liable if tort/crime for the benefit of the community 2. CP secondarily liable if not for the benefit of the community

Pereira? (3)

1. CP time and skill is the greater factor in the appreciation 2. SP gets a fair rate of return (10%) on orginal investment times the number of years married plus the original investment 3. CP gets everything else

EXCUSES FOR NONPERFORMANCE

1. Conditions and Nonoccurrence of Conditions 2. Insecurity 3. Anticipatory Repudiation 4. Impossibility and Impracticability

Extreme and outrageous conduct

1. Conduct exceeds bounds of decency in society-mere insults alone insufficient 2. Non-outrageous conduct may be actionable if: D targets P's know sensitivity or weakness D's conduct is continuous or repetitive D targets a P who is a member of a "fragile" class (elderly, children, preg. women, D is a common carrier or innkeeper

Malicious Prosecution: Elements

1. D commenced a prior criminal or civil legal proceeding against P. Note: Prosecutors are immune from this) 2. Proceeding terminated in P's favor 3. No probable cause for the original proceeding ( D knew P was not guilty or had insufficient facts to reasonable believe P was guilty) 4. D had improper purpose in initiating the proceeding 5. Damages

TresPass to Land-Physical invasion requirement

1. D enters P's property or propels an object onto it. ( walks, throws ball, chases someone) 2. P must only have actual or constructive possession- ownership not required 3. Must be a physical invasion 4. P's real property includes: surface space, airspace, and subterranean space to a reasonable distance.

Intentional Misrepresentation-elements:

1. D misrepresents a past or present material fact 2. D knows or believes the misrepresentation is false 3. D intends to induce P to act or refrain from acting in reliance on the misrepresentation 4. Actual reliance by P (causation) 5. Justifiable reliance by P 6. Damages - P must suffer monetary loss

Negligent Misrepresentation elements:

1. D misrepresents a past or present material fact in a business or professional setting 2. Breach of duty of care owed to a particular P (ie D knew P could rely on the misrepresentation) 3. Actual and justifiable reliance by P 4. Damages- P must suffer monetary loss

Bystander claims for Emotional Distress-D's conduct

1. D's conduct can be negligent 2. Injury can result from a product defect 3. Bystander recovery is not available for medical malpractice

Bystander claims for Emotional Distress- elements

1. D's conduct seriously injured or killed a 3rd person. 2. P is closely related to the injured person 3. P was present when the injury occurred 4. D knew 2 and 3 5. P suffers severe emotional distress- physical manifestation not required, compare to related tort of negligent infliction of emotional distress.

Necessity Requirements

1. D's interference with P's property must be reasonably necessary to avoid immediate threatened injury. 2. Threatened injury must be more serious than the interference undertaken to avert it.

Negligent Infliction of Emotional Distress-elements:

1. D's negligence results in a close risk of bodily harm to P. P must be in "zone of danger" to recover, D's act must have early caused physical harm to P. 2. D's negligence results in P's severe emotional distress 3. P exhibits some physical manifestation attributable to his emotional distress (heart attack, miscarriage) Nonphysical symptoms like depression or nightmare are insufficient. Symptoms of physical manifestations can be instantaneous or appear days later.

Defamation- Elements

1. Defamatory statement- adversely affect's P's reputation (must be based on specific facts). 2. Concerning P- must be reasonably understood that the statement concerns a living P or a very small group of P. 3. Publication- statement must be intentionally or negligently made to a third person 4. Harmful to P's reputation 5. Falsity & Fault- only required if statement involves a matter of public concern or a public figure or official.

Negligence Elements:

1. Duty of Care 2. Breach of Duty 3. Causation - actual cause and proximate cause. Actual cause also referred to as "cause-in-fact" 4. Damages

Product Liability: Negligence Theory- elements:

1. Duty of Care- each merchant in the stream of commerce owes a duty to all foreseeable product users and bystanders. 2. Breach of duty- D's negligence leads to the supplying of a defective product- retailers and wholesalers satisfy due car by a cursory inspection of the product ( makes it difficult to hold accountable) 3. Causation: P must show actual and proximate cause. Note: an intermediary's negligent failure to discover defect does not absolve upstream merchant of liability. 4. Damages: P must show physical injury or property damage- economic loss alone is not recoverable 5. Defenses- all standard negligence defenses are available.

SERVITUDES

1. Easements 2. Easement by Prescription 3. Easement by Implication 4. Easement by Necessity 5. Express Easement 6. Scope of Easement 7. Termination of Easement 8. Negative Easements 9. Licenses and Profits 10. Covenants 11. Requirements for Burdens of Covenants 12. Requirements for Benefit of Covenants 13. Equitable Servitudes 14. Reciprocal Negative Servitudes

Intentional Infliction of Emotional Distress - elements

1. Extreme and outrageous conduct by D 2.Severe emotional distress in P 3. Intent or recklessness 4. Causation

ZONING

1. Govt. zoning power, variances, and nonconforming use. 2. Special use permits and exactions

prior identification? (3)

1. ID is of party or other as person who committed a crime/other occurence 2. made at time crime/other occurrence fresh in mind 3. must first testify made ID and was true reflection of opinion

DEFENSES TO CONTRACT FORMATION

1. Incapacity 2. Statute of Frauds 3. Illegality 4. Misrepresentation/Fraud 5. Duress 6. Unconscionability

LAND SALE CONTRACTS & CONVEYANCES

1. Land sale contracts and conveyances 2. Equitable conversion and risk of loss in land sale contracts 3. Implied promises in land sale contracts 4. Deeds 5. General warranty deeds and covenants for title 6. Bona fide purchasers for value 7. Recording statutes 8. Chain of title problems: shelter rule, wild deeds, estoppel by deed 9. Real estate brokers and Agents

LAND RIGHTS INCIDENTAL TO OWNERSHIP

1. Lateral & Subjacent Support 2. Water Rights in Watercourses 3. Water Rights in Groundwater and Surface Water

Confidentiality? (2)

1. Lawyer shall not reveal matter related towards representation 2. privilege extends to observations made as a consequence of protected communications

LEASEHOLD ESTATES

1. Leasehold Estates 2. Periodic Tenancy 3. Tenancy at Will 4. Tenancy at Sufferance 5. Tenant's Duties at Common Law 6. Fixtures 7. Landlord's Remedies for Tenant Breach 8. Landlord's Duties and Warranties 9. Implied Covenant of Quiet Enjoyment 10. Implied Warranty of Habitability 11. Landlord's Tort Liability to Tenants 12. Assignments and Subleases

Contracts Within the Statute of Frauds MY LEGS

1. Marriage Contracts 2. Service contracts incapable of being performed w/in 1 year 3. Real estate contracts that transfer interests in land 4. Executor promises 5. Guarantees/ Suretyship 6. Sales of goods of $500 or more

MORTGAGES

1. Mortgages 2. Transferability of Mortgage interests and Holder in due course status 3. Foreclosure and Mortgagee rights to property 4. Foreclosure and multiple creditors/interests

Strict Liability: Prima Facie Case

1. Nature of D's activity imposes absolute duty to make safe 2. Causation- actual and proximate cause (dangerous aspect of D's activity caused P's injury) 3. Damages to P's peso or property Note: no amount of due care wi relieve D of liability under strict liability.

REMEDIES

1. Non-Monetary Remedies 2. Standard Money Damages 3. Additional Damages, Restitution, and Liquidated Damages 4. Damages for UCC Contracts

CONTRACT FORMATION

1. Offer 2. Termination of Offer 3. Revocation of Offer, Irrevocable Offers, and Options 4. Rejection of Offer 5. Acceptance 6. Mailbox Rules 7. Acceptance by Performance 8. Consideration and Substitutes for Consideration

Irrevocable Offers

1. Option contracts 2. UCC Firm Offers 3. Detrimental reliance by the offeree

Intentional Interference with Business Relations-elements

1. P has a valid contractural relationship or business expectancy ( includes contracts between P and 3rd party) 2. D has knowledge of the relationship or expectancy 3. D intentionally interferes with that relationship 4. D's interference causes a breach or termination in P's contract or expectancy 5 Damages

(tort legal restitution) money? (2)

1. P has the option of not pursuing damages but getting a judgment for D's gains 2. general points - called quasi-l or assumpsit - looks to benefit to D; unjust gains - P may waive tortl; sue in assumpsit

Intrusion upon seclusion - requirements

1. P must have reasonable expectation of privacy-no reasonable expectation of privacy in public 2. Intrusion must be highly offensive-eg. peeping, eavesdropping or hidden cameras in P's domain Note: No newsworthiness exception

If arrest in public (3)

1. PC for a felony 2. misdemeanor in presence 3. within 48 hours judge must establish PC

DETERMINING THE CONTRACT TERMS

1. Parol Evidence Rule 2. UCC Default Terms

PERFORMANCE ISSUES IN UCC CONTRACTS

1. Perfect Tender and Rejection of Goods 2. Perfect Tender and Acceptance of Goods 3. Perfect Tender and Seller's Ability to Cure 4. Perfect Tender and Installment Contracts

Trespass to Land-Elements

1. Physical invasion of P's real property by D 2. Intent- D does not need to know the land belongs to another 3. Causation

Defamation-Constitutional Considerations- Plantiff

1. Public Figures=one who has pervasive fame or notoriety or who voluntarily assumes a central role in a public matter 2. Public Official-= public office holder 3. Matter of public concern- statement related to a community of interests or concerns (includes national interests)

CHANGES TO CONTRACT OBLIGATIONS

1. Rescission 2. Modification 3. Novation 4. Accord and Satisfaction

3 ways to deal with breach of wills contracts? (3)

1. SOF 2. estoppel- detrimental reliance 3. third party beneficiary

Lucas (joint title)? (3)

1. SP funds toward purchase or improvement of JT property 2. Anti-Lucas, SP entitled to reimbursement dollar for dollar absent agreement to the contrary (no interest) 3. at death Anti-Lucas legislation does not apply JT controls

(third party transfers) gifts?

1. Spouse managment and control: equal rights since 1975 2. either spouse may act alone 3. can deal with CP as his own except CP business where other spouse is manager.

Statutory Standards of Care & Negligence Per Se Requirements

1. Statute provides a criminal penalty. 2. Standard of conduct is clearly defined in the statute 3. P is within the class of people the statute was designed to protect 4. The statute was designed to protect against the type of harm P suffered

PERFORMANCE ISSUES IN COMMON LAW CONTRACTS

1. Substantial Performance 2. Material Breach

omitted spouse? (2)

1. T makes a will and then gets married. 2. Spuse gets T's half of CP and her half (equals all of CP) and part of T's SP - 1/3 if more than one child or issue of child - otherwise 1/2 - never gets less than 1/3

TPB and Suing to enforce the contract

1. TPB can sue the PROMISOR 2. PROMISEE can sue PROMISOR (legal/equitable) 3. TPB can ONLY sue PROMISEE if TPB is a creditor beneficiary.

Injunction? (3)

1. TRO temporary restraining order 2. preliminary 3. permanent

CONCURRENT ESTATES IN LAND

1. Tenancy in Common 2. Joint Tenancy 3. Tenancy by the Entirety 4. Co-Tenant's Rights and Duties

THIRD PARTY ISSUES

1. Third Party Beneficiaries 2. Rights of Third-Party Beneficiaries 3. Assignment 4. Revocability & Enforcement of Assignments 5. Delegation

CONTRACTS BASICS

1. Unilateral/Bilateral Contracts, Quasi-Contracts 2. Applicable Law 3. UCC/Common Law Distinctions

Product Liability: Implied Warranties- Elements

1. Warranty-existence of an implied warranty 2.Breach- product fails to live up to applicable warranty 3. Causation- actual and proximate 4. damages- personal, property and economic are all recoverable.

Elements of abuse of power

1. Wrongful use of process for ulterior purpose 2. Definite act or threat against P to accomplish and ulterior purpose

Elements of an offer

1. a promise, undertaking, or commitment 2. definite and certain terms 3. communicated to the offeree 4. create the power of acceptance in the offeree

Scope + CA? (5)

1. abide by client objectives 2. consult on means 3. abide by client's decision to settle/accept plea deal 4. shall not assist criminal fraudulent conduct but can discuss legal consequences - CA- a laywer shall not advise the violation of any law

de facto? (4)

1. abolished in most states, issue is did D know or have reason to know 2. good faith colorable attempt to comply (unaware of invalidity) 3. some exercise of corp. privileges 4. treat as corp for all purposes except in action by the state 5. if D knows or has reason to know of invalidity D is liable

secret trust? (3)

1. absolute gift made in reliance on promise to hold property in trust for another 2. trust does not appear on face of will; devisee orally promises to use property for another person & T died having devised in reliance of promise 3. constructive trust remedy: extrinsic evidence is okay. Issue is unjust enrichment

acts of independent legal significance? (2)

1. acts or documents that have significance apart from their significance to the will 2. therefore not soley to avoid the requirements of writing a will

pleas must be voluntary, and the judge must? (3)

1. address and personally explain: - nature of charge - maximum sentence possible - right to plead not guilty - plea waives rights: to jury trial, to confront adverse witnesses, 5th amendment rights against compelled self-incrimination 2. ensure voluntarines 3. on the record

6th amendment rt to counsel applies at critical stages (only if D has rt. to counsel? (6)

1. adversarial preliminary hearing 2. post indictment interrogation (after accusation in writing by grand jury) 3. post indictment line-up 4. arraignment/accused brought into court to plead 5. plea stage 6. sentencing

(CL fed securities) fraud (2)

1. affirmative misrepresentation 2. nondisclosure

prior consistent statments are inadmissible in civil cases to support credibility unless?

1. after attack with prior inconsistent statment (CA only) 2. or after charge of recent fabrication/undue influence (both FRE and CA)

When does reverse Pereira and Van Camp apply? (2)

1. after permanent separation but before dissolution 2. CP business managed by one the spouses after permanent separation appreciates 3. apply both reverse Pereira and reverse Van Camp

marital transmutation 1985-present? (2)

1. agreement must be in writing by express declaration (writing must expressely state that the character of the property is being changed) 2. gifts must be in writing after July 87 unless: a. of a personal nature b. not substantial in value given the marriage

Parole Evidence will be allowed if:

1. agreement was only partially integrated or 2. additional terms would ordinarily be in a separate agreement

Fee splitting ABA? (5)

1. allowed with lawyers but not non-lawyers 2. may be shared with L's but only if client consents in writing 3. total fee is not increased solely because of fee-sharing 4. proportional to the work allocation, but each L responsible for all 5. total fee not unreasonable

Fee splitting CA? (6)

1. allowed with lawyers but not non-lawyers\ 2. may be shared with L's only if client consents in writting 3. total fee is not increased solely because of fee agreement 4. written disclosure and consent 5. total fee not unconscionable 6. forwarding or referral fees ok

codicil? (3)

1. amendments to a will 2. requires same formalities as a will 3. re-publication will is deemed republished on date of codicil

interrogation? (2)

1. any conduct where police knew, or should have known that they might elicit a damaging statement 2. not spontaneous, must be in response to interrogation

purpose? (2)

1. any purpose as long as not against public policy 2. chartiable trusts must have charitable purpose

lawyer as corp counsel (Sarbanes-Oxley)? (3)

1. applies only to lawyer appearing before the SEC 2. L shall go up the corp ladder is he learns of material violations of securities or breach of fid. duty (ok under ABA and CA) 3. L may inform SEC (not in CA)

(CP) pensions and other assets (transmuted) that may be precede or exceed the community?(2)

1. apply the time rule 2. years employed or years asset held during marriage divided by total years employed or asset held.

Measures to take when organization is client + CA? (4)

1. ask for reconsideration 2. seek counsel advice 3. refer matter to a higher authority (report up corp. ladder) 4. may resign, can't blow whistle unless necessary to prevent substantal injury to the org CA- can't blow whistle

prior consistent statement allowed after? (2)

1. attacked w/ prior inconsistent statement 2. change of recent fabrication/influence

CA- a member shall not withdraw from employment before taking reasonable steps to? (2)

1. avoid reasonably foreseeable prejudice to C's rights 2. including giving notice and allowing time to employ other counsel

(warrant exceptions) school child? (2)

1. based on reasonable grounds 2. school may conduct a search w/o a warrant

(impeachments) convictions CEC criminal?

1. because of prop 8, not limited to felonies (can be misdemeanors) 2. felony misdemeanor must involve "moral turpitude" 3. subject to 352

to perfect right to appraisal? (4)

1. before SH votes, files written notice of objection + intent to demand 2. abstain or vote against proposed change 3. after vote, make written demand to be bought at FMV 4. if can't agree on FMV, court-appointed appraiser decides

BFP real property remedy? (3)

1. before death, set aside reimburse BFP 2. after death - if BFP- set aside 1/2 of sale, reimburse BFP 1/2 of price (effect is BFP and spouse become TIC) - if not BFP- set aside entire sale (reimburse purchase $) 3. SL 1 year from date recorded.

unconscionable when executed and party against whom it is enforced? (2)

1. before execution was not given full, fair and reasonable financial disclosure (did not have adequate knowledge of the other's finances) 2. before execution did not voluntarily and expressely waive the right of disclosure

(general damages) expectation?

1. benefit of the bargain 2. use facts what did P bargain for

Organization as cleint? (2)

1. best interests of the organization 2. shall explain organization as client when L knows or should know organization's interests are adverse

self incrimination, taking the 5th applies only to testimonial communications, and does not apply to? (6)

1. blood 2. saliva 3. hair 4. voice 5. appearance 6. fingerprints

articles can provide for indemnification except? (3)

1. breach of duty of loyalty 2. intentional misconduct 3. improper personal benefit

(QMP) death and bigamy? (2)

1. by devise common spouse can devise 1/2 CP and 1/2 QMP 2. by intestate- all CP to legal spouse, all QMP to putative spouse

revocation types? (3)

1. by subsequent valid testamentary act 2. by physical revocation (total or partial) 3. partial revocation by operation of the law

(tort) special damages? (4)

1. casual 2. foreseeable (P.C. look for unlikely chain) 3. certain (e.g. business) 4. unavoidable (duty to mitigate; avoidable consequences rule)

Evaluation for 3P okay if? (3)

1. compatible with L/C relationship 2. informed consent required if L reasonably should know evaluation likely to affect C's interests materially and adversely 3. otherwise protected by 1.6

rape shield criminal? (3)

1. conduct between V and D to show consent - not manner of dress unless judge allows 2. if V offers own conduct, D may rebut 3. impeachment (rare) subject to 352

rape shield civil? (4)

1. conduct between victim and 3P to show consent, and D not the source of injury - so long as V alleges loss of consortium 2. conduct between victim and D to show consent and that D the reason for loss of consortium 3. if V offers own conduct, D may rebut 4. impeachment (rare) subject to 352

purchase money resulting trust? (4)

1. consideration paid by person other than one receiving title (SOF if real property) 2. rebut with oral evidence of gift 3. when close personal relationship involved, gift presumed 4. if fraud, then constructive trust

Multijurisdictional practice, out of state L may not establish? (2)

1. continuous presence 2. represent himself as licensed

UCC buyer breach? (buyer won't buy) (2)

1. contract price - market price 2. resale price + incidentials

After acceptance trustee resignation is void unless? (3)

1. court approves 2. trust provides for resignation 3. consent of all beneficiaries

UCC seller breach? (seller won't sell) (3)

1. cover - contract price AND 2. incidental and consequential OR 4. specific performance 5. replevin

judicial notice criminal cases? (2)

1. crim- can be conclusive unless fact prosecutor has to prove 2. civ- judge may and shall upon request instruct conclusive

Can't trace if there is a BFP?

1. cuts of equitable remedies against the BFP 2. trustee holds consideration in trust 3. if not BFP bene. may a. impose constructive trust on consideration received by trustee or b. impose a constructive trust for on the original asset

Business torts?

1. damages - losses proximately caused - if bad faith punitive 2. restitution- benefit to D 3. injunction- to enforce a negative covenant

Fraud?

1. damages - tort- out of pocket/value paid minus value received+punitives - contract- benefit of the bargain 2. restitution- constructive trust 3. injunction- equity will not enjoin a crime

Contract remedies? (8)

1. damages 2. reliance 3. restitution 4. specific performance 5. rescission 6. reformation 7. replevin (UCC) 8. injunction - TRO (temporary restraining order) - Preliminary - Permanent

(injunction) inadequate legal remedy? (4)

1. damages inadquate- too small or inadequate 2. continuing harm- multiplicity of suits or 3. irreparable injury- damages can't compensate for P's loss of unique land or property or 4. prospective tort- wrong has not yet been committed

Liquidated damages? (5)

1. damages specified in the contract 2. actual damages must be hard to calculate 3. amount specified must be a reasonable approximation either at time of contract or in view of actual damages 4. may not be used as a penalty 5. if specified as sole remedy, is sole remedy

Trespass causing severance (e.g. cutting down trees)?

1. damages- diminished value of land attributable to severance, or conversion measure 2. restitution - legal- replevin, quasi-contract - equitable- constuctive trust, equitable lien (use tracing) 3. injunction- land is unique

trespass to land?

1. damages- dimished value or replacement costs 2. restitution - legal- ejectement, unjust enrichment - equitabe- constructive trust, equitable lien (use tracing) 3. injunction

Nuisance

1. damages- loss of use and enjoyment of land (if permanent, use diminution in value) 2. restitution- legal (look to benefit to D) 3. injunction - land is unique/avoid multiplicity of suits - TRO/prelim/permanent (depending on circumstances)

Privacy?

1. damages- mental anguish (cause of action does not survive) 2. restitution- benefit to D/accounting for profits 3. injunction- continuing wrong/damages speculative

encroachment?

1. damages- rental values, fair market value if permanent 2. restitution- legal (look to benefit to D) 3. injunction- - if bad faith tear down - if innocent- in innocent balancing test

conversion? (3)

1. damages- value at time and place of taking + interest and expenses 2. restitution - legal- replevin, assumpsit - equitable- constructive trust, equitable lien (use tracing) 3. injunction- only if replevin won't work

Recovery from 3P tortfeasors is CP as long as? (2)

1. date of the accident was during the community 2. but may be awarded entirely to the injured spouse at dissolution

formation defects? (4)

1. de jure 2. de facto 3. estoppel 4. piercing the corp. veil

QCP is SP except at?

1. death of acquiring spouse 2. dissolution 3. creditors

(QCP) normally treated as SP but treated as CP at? (4)

1. death of acquiring spouse 2. dissolution 3. creditors 4. if non-acquiring spouse dies remains, SP

Quasi-CP remains separate property of acquiring spouse except? (3)

1. death of acquiring spouse 2. dissolution 3. action by creditors

CP is liable for? (2)

1. debts of other spouse incurred before or during the marriage - limited exception- pre-marital debt other spouse's earnings will not be liable if kept separate and inaccessible to incurring spouse) 2. at dissolution pre-marital debt is assigned to the incurring spouse

additional categories of admissions under CEC? (4)

1. declarant who shares duty/liability with party 2. declarant whose right to title is at issue 3. minor child in parent's action for child's injury 4. declarant in action for his wrongful death

claim of ineffective assistance of counsel standard?

1. deficient performance (eg drunk) 2. but for deficiency, result would be different

Mandatory withdrawal + CA? (3)

1. discharged by client 2. physical or menatl impairment 3. violate model rule or law CA- sexual relations with client

(law firms) Supervisor/subordinate? (2)

1. discipline if senior L ordered or knowingly ratified 2. learns of and fails to correct

intent? (3)

1. divide legal and equitable title 2. Issue= precatory words (precatory= expressing a wish) 3. vests legal title in trustee and equitable title in beneficiaries

(third parties) Respect for 3P?

1. do not embarass unnecessarily 2. if receive document that was inadvertently sent shall prompt;y notify sender

Unauthorized practice of law? (2)

1. do not participate in the unauthorized practice of law 2. dont assist another 3. practice only in the jurisdiction where admitted

Perjury CA?

1. do nothing to further deception 2. don't question or assist, use a narrative 3. omit references (don't reference it, in closing)

Work Product limitation? (3)

1. documents or other tangibles 2. prepared in anticipation of litigation 3. by party - ordinary- discoverable if- substantial need and unable to obtain info w/o substantial hardship - mental impressions- mental impressions, theories, opinions, conclusions, and strategies have absolute protection (unless exception applies malpractice, fee dispute etc.)

wills contracts breach? (3)

1. does not affect will or intestacy 2. even if valid contract is proven, party may revoke or alter will 3. look to contract remedies

(formal attested will) interested witness?

1. does not invalidate will 2. rebuttable presumption of undue influence 3. overcome the presumption or take intestate share

(third parties) Communication with unrepresented persons?

1. don't imply impartiality 2. only advise to seek counsel

(supervision) trustee's obligations, trustee can be removed for any of the following? (7)

1. due care 2. duty of loyalty (no- self dealing) 3. no comingling funds/earmarking 4. perform personally- no delegation 5. accounting to beneficiaries 6. defend trust 7. fariness (allocation rules)

(tort) punitive? (4)

1. due process protects P's against excessive awards 2. consider reprehensibility 3. proportionality to actual damages 4. wealthy d's pay more

remedy for gifts to third parties? (3)

1. during life, set aside entire 2. at death, set aside 1/2 3. SOL 3 years

creditors SP? (2)

1. each spouse is personally liable for his/her SP debt 2. child/spousal support acquired before the marriage is SP regardless of when ordered.

Safekeeping? (4)

1. earmark 2. no co-mingling 3. keep record 4. notify

Reverse Van Camp? (3)

1. economic conditions the greater factor in appreciation 2. SP gets salary for reasonable value of services, times years 3. CP gets the rest

Pro Bono? (2)

1. every lawyer has a professional responsibility to provide legal services to those unable to pay 2. apsire to do 50 hours

Parole Evidence rule does not apply to or bar admission of:

1. evidence of oral agreements made after the writing 2. evidence necessary to determine if there was a mistake in the process of reducing an agreement to writing 3. evidence concerning a party's defense based on misrepresentation, fraud or duress 4. evidence used to resolve ambiguities about the meaning parties intended to give particular terms in the writing

Conflict of law, California will probate if? (4)

1. executed under California law 2. meets law of place where executed 3. meets law of place decedent's domicile at death 4. meets law of place decedent's domicile at execution

Advisor/counselor? (2)

1. exercise independent professional judgment 2. render candid advice

(supervision) trustee authority? (3)

1. express 2. implied (always present) 3. joint trustee - unanimous - if one acts need fault

(revocation) subsequent valid testamentary act?

1. express ("I revoke all prior wills) 2. implied: - total inconsistency - partial inconsistency

(fairness) remaindermen principal? (3)

1. extraordinary receipts 2. stock dividends; profits from sale of stock 3. mines open after trust created- get principal (income from invetsments goes to beneficiaries)

(Joint trustee) when there is a joint trustee, if one trustee acts and one sits back, the one that sits back is liable if there's fault, which is ? (3)

1. failure to prevent 2. participated, in breach 3. found out, but did nothing

preemption?

1. federal law may supersede CA CP law - US bonds - SSI 2. military not preempted

(impeachments) convictions CEC civil?

1. felonies no misdemeanors 2. only felonies involving "moral turpitude" readiness to do evil- concealment, destruction of evidence 3. subject to 352

(Multijurisdictional practice, out of state L) may provide services if? (2)

1. for L's employer and pro hac vice admission not required or 2. authorized by federal or other law

formalities? (2)

1. formal attested will 2. holographic will

Will contest? (6)

1. fraud 2. undue influence 3. gift to drafter 4. mistake 5. ambiguity 6. no contest clause

de jure? (2)

1. full or substantial compliance 2. shareholders not personally liable

transferring all assets/shares? (3)

1. fundamental corp. change for selling corp only 2. need same as merger 3. right of appraisal for selling corp.

(transmutation/marital) co-mingling (2)

1. funds presumed CP if source cannot be identified 2. trace: a. direct- must show had SP funds, and intended to use them b. family expenses (all CP funds exhausted)

winding up? (4)

1. gather all assets 2. convert to cash 3. pay creditors 4. distribute remainder pro rata unless distribution perference

Damages? (4)

1. general damages 2. special damages 3. liquidated damages 4. punitive

semi-secret? (3)

1. gift in will to person "in trust" but fails to name beneficiary 2. will mentions trust but does not specify beneficiary or terms of trust 3. resulting trust remedy: no extrinsic evidence - because eveybody will claim to be beneficiary. Assets result back to settlor's estate and go to will or intestate succession.

Replevin part 1? (2)

1. goods identified to the contract 2. buyer cannot cover after reasonable efforts

double jeopardy same offense? (2)

1. greater or lesser bars- crimes same if all the elements of one are in the other (eg larceny, robbery) 2. conspiracy always separate

Advertising CA prohibits long list? (5)

1. guarantees 2. promises of immediate cash or quick settlement 3. undisclosed impersonation of attorney or C 4. dramatization without disclosure 5. contingent fee without explanation

(balance hardships/prelim. injunction) in weighing hardships court looks at? (2)

1. harm to P if injunction erroneously denied 2. harm to D if injunction wrongfully granted

sh management close corp? (4)

1. has few sh 2. not publicly traded 3. owners manage day to day 4. sh are liable

reimbursement rules (2)

1. if SP funds used to pay CP debt, SP is entitled to reimbursement as long as CP funds were available at time debt arose. 2. if CP funds were used to pay SP debt, CP is entitled to reimbursement as long as SP funds were available at time debt arose.

reliance? (2)

1. if affirmative misrep must prove reliance e.g. but for misrep would not have bought or sold 2. if omission or public misrep- reliance presumed

(CP) life insurance? (2)

1. if paid for by CP funds 2. if cash value instead of term, CP gets a pro rata share based on its contribution or interest

6th amendment confrontation? (2)

1. if two or persons are tried together and one gives a confession that implicates the other, the right of confrontation prohibits the use of that statement (because D has right to confront adverse witnesses) 2. exceptions: a. eliminate implication factors (redact non-confessors name) b. confessor takes the stand so D gets to confront

5th amendment self-incrimination protection is inapplicable where? (3)

1. immunity (agree to testify in return for immunity) 2. waiver (takes the stand) 3. no possibility of incrimination (eg civil trial where already found not guilty in criminal trial)

Non-profit and court annexed limited legal service programs? (2)

1. imputed disqualification rulee do not apply 2. rules re conflict with current client and requirement to get written consent from former client do not apply unless L knows there is a conflict

(Multijurisdictional practice, out of state L) may temporarily provide legal services if? (3)

1. in association with another L who actively participates 2. authorized by law/ordered to appear 3. reasonably related tp practice aand forum does not require pro hac vice admission

(injunction balance hardships, depending on type of injunction) permanent? (4)

1. in certain cases for permanent court may balance 2. issued after final decision on the merits 3. encroachment - if intentional no balancing - in innocent balance hardship to P if in injunction denied, with hardship to D if granted 4. nuisance- always balance hardships

formal attested will (3)

1. in writing 2. signed by T (or in T's presence at T's direction) 3. signed during T's lifetime by two attesting witnesses who: - signed at the same T - witnessed T sign or T's acknowledment of T's signature - who knew it was a will

injunction? (5)

1. inadequate legal remedy 2. property right 3. feasibility 4. balancing the hardships (depending on type of injunction) 5. defenses

(compentency) disqualified only if?

1. incapable of expressing self so as to be understood (mental capacity to narrate) or 2. incapable if understanding duty to tell the truth - judge's call before or after the witness testifies

Formation Defenses

1. incapacity 2. statute of frauds 3. illegality 4. misrepresentation/fraud 5. duress 6. unconscionability

formation requirements? (3)

1. incorporators 2. articles - name of corp. - purpose - capital structure 3. acts

(Transactions) no 3P payer unless? (3)

1. informed consent 2. does not interefere with L's independent professional judgment 3. info protected by 1.6

Confidentiality exceptions? (5)

1. informed consent 2. impliedly authorized 3. dispute concerning attorney conduct 4. to prevent reasonably certain death or substantial bodily harm 5. conply law or court order

CA confidentiality exceptions?

1. informed consent 2. may reveal to the extent L reasonably believes, the disclosure is necessary to prevent a criminal act that L reasonably believes is likely to result in death, or substantial bodily harm - no allowed for financial harm

(duties to prospective clients) disqualification is imputed to firm unless? (4)

1. informed consent of both in writing OR 2. L who received info limited it to just that necessary 3. all disqualified lawyers are timely screened 4. prompt written notice to prospective C

remedies? (4)

1. injuction 2. rescission 3. constructive trust 4. out of pocket

valid testamentary instrumemt? (3)

1. intent 2. capacity 3. formatlities, either a formal attested instrument (will/codicil) or holographic (will/codicil)

trust elements? (5)

1. intent 2. purpose 3. res/property 4. trustee 5. ascertainable beneficiary

Cruel and unusual? (3)

1. intent to cause pain 2. unusual- no other state does it 3. disproportionate sentence

(revocation) by physical act? (2)

1. intent to revoke (you must prove this) 2. physical act

(fairness) beneficiaries entitled to income? (3)

1. interest/dividends 2. open mines- all receipts if before trust created 3. open mines after- income from investments if any

Former client imputed to firm when? (3)

1. interests materially adverse to formmer client 2. lawyer had acquired info protected by 1.6 3. unless informed written consent

advancement? (3)

1. intervivos gift w/ T's intent for it to represent intestate share (so this is the intestate equivalent of satisfaction) 2. Cal. requires a writing: a. by T- contemporaneous or b. acknowledged as such by heir

integration?

1. issus when the will is written on more than one piece of paper 2. papers present at time of execution of the will that T intended to constitute the will. - intent is shown by physical or logical connection e.g. pages numbered, stapled together, in a safety deposit box etc

16b elements? (4)

1. jurisdiction 2. insider 3. short swing profits 4. purchase or sales of equities

double jeopardy when attaches? (2)

1. jury trial- swearing in 2. non-jury trial- swearing in first witness

Communication + CA crim/civ? (4)

1. keep client reasonably informed 2. explain to the extent necessary 3. promptly consult 4. promptly inform when informed consent required CA criminal- must convey settlement offers CA noncriminal- any written or significant offer

properly executed warrant? (2)

1. knock and announce 2. must be within the scope

(injunction) defenses? (4)

1. laches- unreasonable delay resulting in prejudice to P 2. unclean hands- unfair dealings with respect to transaction being sued upon 3. freedom of speech- rule against prior restraints (no injunction for defamation) except trade libel, watch for commercial speech 4. criminal act- equity will not enjoin a crime

Defenses? (6)

1. laches- unreasonable delays result in prejudice to D 2. unclean hands- P's unethical conduct w/ regard to the transaction at hand 3. SOF 4. material misrepresentation 5. harship- inadequate consideration at time of contract - harsh terms (unconscionable)

(warrant exceptions) SILA non-auto? (3)

1. lawful arrest 2. contemporaneous arrest 3. grabbable area

Former client + CA?

1. lawyer shall not represent client if matter substantially related 2. and interest is materially adverse to former client unless: 3. informed consent 4. confirmed in writing CA- applies only when L onbtained material confidentail info, then requires informed written consent

Tort Remedies? (2)

1. legal remedies - damages - legal restitution 2. equitable remedies a. equitable restitution - constructive trust - equitable lien - techniques- tracing rules, commingling, accounting for profits b. injunction

(QMP) dissolution/divorce and bigamy? (2)

1. legal spouse gets 1/2 of CP and has an interest in all of the spouse's QMP acquired during the marriage (at court's discretion) 2. putative spouse gets 1/2 of QMP

(warrant exceptions) plain view? (2)

1. legitimately on the premises 2. evidence is obviously incriminating

balancing test for speedy trial? (4)

1. length of delay (8 mos, or longer is "presumptively prejudicial" 5 mos. or less is not) 2. reason for the delay 3. D's responsibility to assert the right (in a timely motion to dismiss) 4. prejudice to D

Accepting appointments, shall not avoid unless? (3)

1. likely to result in the violation of a model rule 2. unreasonable financial burden 3. repugnant

sale of controlling sh interest includes? (3)

1. looting- sh liable unless reasonable investigation 2. premuim- disguised sale of corp assets (disguised way to pay of controlling sh) 3. sale of corp office- may not sell office for private gain

CA confidentiality?

1. maintain inviolate the confidence 2. and at every peril to himself or herself 3. preserve the secrets of the client

Client with diminished capacity + CA? (2)

1. maintain normal relationship 2. ABA- may seek guardian (and reveal only necessary infor to guardian) CA- must have C's consent

(CL securities laws) sale of controlling SH interest?

1. majority or controlling sh under a fiduciary duty to exercise control for the benefit of all sh 2. including a duty of care and loyalty, fully disclose, act in good faith, and transactions fair

other director duties? (4)

1. manage the corp 2. personally manage- can delegate but not all powers 3. meetings- no proxy votes for D's, quorum 4. removal

scheme to defraud?

1. material misrep 2. failure to disclose- duty to disclose or abstain has been violated 3. tipping

L's as W's do not unless + CA?

1. mere formality; uncontested 2. relates to value of service 3. substantial hardship CA 1. written consent of C 2. testimony to a judge

dependent relative revocation elements? (4)

1. mistaken belief induces physical revocation 2. T would not have made the revocation but for mistake 3. effect: disregard the revocation 4. if DRR fails use intestate succession

double jeopardy does not attach? (5)

1. mistrial 2. hung jury 3. separate sovereigns 4. successful appeal unless ground for reversal= insufficient is only appeal it attaches to. 5. breach of agreed upon plea bargain by D

death penalty statutes are constitutional if thet meet all of the following? (5)

1. mitigating/aggravating factors must be admissible and heard by jury 2. no automatic death penalty 3. procedure for review 4. under 18 at time of crime- no death penalty 5. mental retardation- no death penalty

(tort) legal restitution? (4)

1. money 2. replevin 3. detinue 4. ejectement

ascertainable beneficiary? (3)

1. must be ascertainable at the time the interest matures 2. RAP- ascertainable w/in life in being + 21 years 3. class gifts- class must be sufficiently definite (e.g. "to all my friends" is no good)

(tort) general damages? (4)

1. must be definite and certain 2. court will not award speculative damages 3. must flow from tort- purpose to make P whole 4. none for purely economic

charitable trust? (4)

1. must be for charitable purpose 2. trust must be in favor of a reasonably large number of unidentifiable beneficiaries 3. not subject to RAP- charity to charity can last forever 4. Cy Pres doctrine- when specific charitable purpose no longer can be accomplished, may be reformed when necessary to carry out intent of settlor (vs. resulting trust)

stock transfer restrictions?

1. must be reasonable 2. corp can refuse if sh violates valid restriction 3. absolute retraint is void 4. restriction conspicuous (against buyer) clearly visible

Special damages (consequential)?

1. must be reasonably forseeable at the time of the contract OR 2. specifically brought to the attention of D

SP of either spouse is liable for? (2)

1. necessaries of life contracted by the other spose while living together - non debtor spouse is entitled to reimbursement 2. common (i.e. ordinary) necessaries by other spouse during separation

4 tests for usurping a corporate opportunity? (4)

1. necessary to the company 2. company has interest/expectancy 3. in the business line 4. overall fairness - only have to approve one, but apply all four

Special duties of prosecutor + CA? (3)

1. need PC to prosecute 2. protect rights 3. disclose favorable evidence CA- L in gov't service must have PC to prosecute - case law imposes duty to disclose favorable evidence

Parole Evidence bars evidence of:

1. negotiations before K becomes integrated 2. agreements before k becomes integrated (oral or written)

Financial assistance + CA?

1. no assistance but its ok to advance costs (may pay costs if client is indigent) CA- L must not agree to pay personal or business expenses of a prospective client, or make any such representations - L may lend money if C agrees in writing to re-pay - reasonable litigation expenses (loan ok)

capacity? (3)

1. no capacity if under 18- infancy 2. mental 3. will contest

violates public policy? (3)

1. no child support OR 2. limitations on spousal support a. not represented by independent legal counsel at signing b. unconscionable at enforcement (look to wealth of both, education of both, self-sufficiency of both, and whether both waived support) 3. or agreement encourages divorce

BFP personal property? (2)

1. no consent needed if sale for FMV 2. except clothes, furniture of the other spouse, remedy is set aside of sale, no reimbursement for a BFP

Fairness to opposing counsel?(3)

1. no destruction/obstruction of evidence 2. no frivolus discovery 3. no request for another not to testify unless: - relative - employee - interests not adversely affected

Inadvertent disclosure? (3)

1. no duty 2. the disclosure had no wrongful purpose 3. no tipper, so tippee can't be liable

Reporting CA?

1. no duty to report other 2. report self if: a. 3 malpractice suits in a year b. civil suits for fraud c. felony charge d. judicial sanctions e. discipline in another state f. appellate reversal for: - incompetence - malpractice

Trial publicity?

1. no extrajudicial statment if L knows or should know 2. it will be disseminated and have a substantial likelihood of prejudice if information is released

Candor to the tribunal? (3)

1. no false statement/omission of material facts 2. must disclose controlling authority in jurisdiction 3. Perjury (explained in more detail on the next card)

marital transmutation prior to 1985? (2)

1. no formal requirements were enforced 2. oral agreements proved by conduct generally prevailed

all earnings after permanent separation are SP, what are the elements? (3)

1. no intent to reconcile 2. physical separation 3. communication to spouse of intent 4. all earnings during temporary separation are CP

Restrictions on right to practice?

1. no non-compete 2. restictions on the right to practice after the settlement

Malpractice?

1. no prospective limits on malpractice liability allowed 2. unless meets indepedent counsel standard

(third parties) Professional independence of L? (3)

1. no sharing of legal fees with non-lawyer unless: - after death L's estate - compensation plan 2. no forming partnership with non-laywer 3. no forming corporation with non-lawyer

trustee? (4)

1. no trust fails for lack of trustee, court will appoint one 2. merger- trustee/beneficiary owns all interest 3. resignation - valid before acceptance- if you don't accept within a reasonable time you are deemed to have rejected

Contingecny fees + CA?

1. none allowed for criminal investigations 2. ABA- none allowed for domestic relations- CA is contra unless against public policy e.g. encouraging divorce 3. must not be unreasonable- CA not unconscionable 4. writing required: - how fee caluculated - what expenses are deducted and what they are liable for - what expenses were deducted CA- statement that fee is negotiable and not set by law

Ways to show breach of due care?

1. nonfeasance- failure to act - has material knowledge but remains silent 2. misfeasance- does something to cause losses

(transmutation) defenses to pre-nups? (3)

1. not exceuted voluntarily 2. unconscionable 3. violates public policy

Custody? (2)

1. not free to leave 2. exceptions: traffic stop/violation, public safety

feasibility of enforcement? (3)

1. not land out of state 2. not personal services contract 3. not employment k (no involuntary servitude)

Literary publication + CA?

1. not prior to conclusion CA- tolerates if its the only way to pay and informed consent

(third parties) Communication with represented persons?

1. not without written consent of opposing counsel 2. or authorized by law court order

(subscription agreement) revocation? (3)

1. old rule- freely revocable as continuing offers 2. modern rule- irrevocable for a designated period usually 6 months unless otherwise stated 3. post-incorp subscriptions- freely revocable until acceptance

Mutuality? (2)

1. old rule-both parties had SP available at the time of K 2. modern rule- security of performance test: - Can P's performance be secured to the satisfaction of the court (contempt power)

partial revocation by operation of law? (3)

1. omitted spouse 2. omitted spouse 3. effect of divorce

estoppel? (2)

1. one dealing with a business as a corp 2. may be estopped from denying its corp status

T's estate will be distrubuted according to the terms of the controlling valid testamentary instrument except?

1. operation of law- omitted spouse, omitted/unknown child, divorce 2. not enough money to go around- abatement 3. specific gift not in estate at death- ademption 4. beneficiary not around because died before T- lapse, anti-lapse

Constructive trust effect? (5)

1. p gets appreciation 2. property belongs to P; creditors have no claim 3. effective date on judgment 4. enforced by contempt powers 5. D must transfer title and possession

watered stock? (3)

1. par shares 2. sold for less than par 3. corp did not receive full value

(specific performance) definite and certain terms?

1. part of the offer 2. court needs to know what to do

Certain & Definite Terms (Common Law)

1. parties 2. subject 3. price and 4. quantity

Certain & Definite Terms (UCC)

1. parties 2. subject and 3. quantity. Price doesn't need to be stated.

tipper liable if? (2)

1. passed inside info in breach of fid duty 2. improper purpose- low bar, even feeling good meets this burden

sh distribution? (2)

1. payment to sh 2. any distribution of cash, property of corp shares on account of stock ownership

promoter? (2)

1. person participating in the formation of a corporation 2. fidiciary duty of fair dealing, disclosure, and good faith duty to: - to corp - to each other

(disqulification imputation of conflict of interest) former judge/3rd party nuetral, no representation where participated? (3)

1. personally 2. substantially unless 3. informed consent in writing

(disqulification imputation of conflict of interest) Succesive gov't to private shall not participate where and the exceptions? (4)

1. personally and substantially on a matter unless 2. srceened 3. no fee 4. notice to gov't

sympathy/benevolence? (2)

1. portion of statatment expressing benevolence/sympathy excluded to prove liability. 2. not statements of fault

6th amendment guarantees right to jury trial elements? (3)

1. possibility of over 6 months of jail time 2. jury pool is cross-section of community 3. at least six members

6th amendment right to cousel attaches to? (2)

1. post charge line-ups (6th amendment right to counsel attaches after formal charges are brought) 2. not photo showings

(revocation) phsical act third party? (2)

1. presence of T 2. at the direction of T

(tort punitive) due process protects d's against excessive awards? (2)

1. presumption: compensatory damages made P whole 2. if "emotional distress" in compensatory, then D has already been punished (so no punitives)

exceptions to prop 8? (5)

1. privilege 2. hearsay 3. 352 4. rape shield 5. character conformity evidence except: - by defense in criminal - victim's character

valid warrant? (3)

1. probable cause 2. particularity 3. detached magistrate

attacking plea after sentence? (3)

1. procedural error 2. ineffective assistance of counsel 3. failure of prosecutor to keep plea bargain effect- may withdraw plea, plea again, may not be given a harsher sentence. - former plea inadmissible as evidence

pre-incorporation contracts? (3)

1. promoter personally liable for pre-incorparation k's made on behaf of the corp 2. if 3rd party is not aware that corp has not formed yet 3. corp. is not liable for pre-incorporation contracts until k is adopted

(impeachment of a witness) specific instances on CEC criminal?

1. prop 8 strikes the ban on specific instances so works like FRE with some differences

effective 1/87?

1. property acquired in joint form is presumed CP 2. rebuttable in writing, by express declaration

(tort punitive) proportionality to actual damages?

1. punitives no more than 1-3 times compensatories unless extraordinary egregious conduct by D 2. no times can it be more than 9 times

gifts to third parties require written consent except?

1. ratification- affirm/acknowledge 2. waiver- refrains from acting when has chance 3. estoppel (conduct by spouse results in detrimental reliance by other spouse)

(scope) L may limit scope if? (2)

1. reasonable 2. client gives informed consent

Competence? (3)

1. reasonably competent 2. prepare or affiliate 3. no neglect

(SP) child/spousal support obligations that are not the result of the marriage? (2)

1. regardless of when ordered 2. CP is liable during marriage but can get reimbursement at dissolution if debtor had SP funds at the time the payments were made

Consideration Substitutes

1. reliance/estoppel 2. UCC modifications to contracts 3. past debts

(impeachments) convictions 352 considerations? (3)

1. remoteness of crime (no time rule like in FRE, so use facts) 2. how much crime bears on veracity 3. evidence of rehabilitation

(injunction) inadequate legal remedy issues? (2)

1. replevin - inadequate if D keeps property by posting bond - or sheriff unable to find property 2. ejectment inadequate- if P wants removal of an encroaching structure

Concurrent conflict of interest + CA? (3)

1. representation direclty adverse to another client CA- written consent and written disclosure 2. significant risk of material limitation on representation because of L's responsibilities to another C, former C, 3rd person or L's personl interest CA- if connection to party or witness substantially affects L, then L must disclose in writing

not exceuted voluntarily, where voluntary requires? (4)

1. represented by independent legal counsel at signing or advised and expressly waived in separate writing 2. 7 day waiting period before signing (after advised to seek counsel) 3. if unrepresented must be fully informed of terms acknowledged in a separate writing 4. no duress, fraud, undue influence, or incapacity

Moore (separately titled property) (2)

1. residence purchased before marriage and taken in purchasing spouse's name alone. CP used to pay down the mortgage. 2. community is entitled to a pro-rata share of the appreciation plus its contribution.

Advertising?

1. responsible L or firm 2. w/ address 3. identified as responsible for advertising contents

operation of law? (3)

1. resulting 2. constructive 3. purchase money resulting trust

Bail? (3)

1. right to bail hearing 2. but not right to have bail set 3. no excessive bail allowed

(sh issues) voting rights?

1. right to vote vested with record owner as of record date, has right of vote 2. if sh dies executor can vote 3. proxies ok 4. voting agreements ok 5. pooling agreements k laws apply

CL fed securities laws? (2)

1. sale of controlling sh interest 2. fraud

standing? (2)

1. security debt- unsecured= debenture, secured= mortgage equity 2. must buy or sell- exceptions derivative suits, injunctive relief - or SEC

modify/revoke?

1. settlor may not revoke unless right is reserved. - power to revoke usually includes power to amend - in California presumed revocable unless specified irrevocable 2. doctrine of changed circumstances

dissolution involuntary?

1. sh can petition for invol. dissolution of corp: sale - dir abuse, waste. misconduct, illegal/oppressive - SH failure to fill vacant board position - director deadlock harming company 2. court may order buyout of complaining SH 3. creditors can petitition if corp. insolvent if creditor has a judgment, or corp admits its debt in writing 4. quo warranto proceeding- corp exceeded, abused its authority, fraudulently, obtained certificate.

Serving as third party nuetral (alternate dispute resolution)?

1. shall inform unrepresented parties that L is not representing them 2. and where appropriate explain the differene between the lawyer role and role of a third party neutral

16b?

1. short swing profit requires surrender to the corp 2. of any profit 3. realized by any corporate insider 4. for the purchase and sale or sale of purchase 5. of any equity within a 6 month period

(transmutation) pre-marital/pre-nuptial agreements elements? (3)

1. signed 2. writing (SOF) 3. no consideration other than marriage required

things that have to be included in miranda? (4)

1. silent 2. anything you say can be used 3. attorney/appointed 4. can terminate

ademption?

1. specific gift adeemed when specific property is not part of T's estate at T's death. 2. to argue against, classifty gift: general gift or use change in form doctrine. - applies only to specific devises - failure to preserve the gift is taken as intent to adeem

gift classifications? (4)

1. specific- identifiable item 2. general- out of general estate 3. demonstrative- payable from specific property- "10k from IBM stock" 4. residuary- that which remains after all payments/gifts

spendthrift trust types? (3)

1. spendthrift 2. support 3. discretionary support

the CEC calls excited utterance? (2)

1. spontaneous statement 2. contemporaneous statment- is a CEC only exception

order (7-headed monster) (7)

1. spouse 2. issue (kids) 3. parents 4. issue of parents (siblings) 5. grandparents, then their issue (aunts, uncles) 6. step-children 7. next of kin 8. parents of pre-deceased spouse 9. esheat

right to inspect books and records? (2)

1. standing- any shareholder 2. must make written demand stating proper purpose - something that affects corp - not supervision of managment

derivative suit requirements? (3)

1. stock ownership 2. written demand 3. bond- in many jurisdictions

res/property? (3)

1. subject matter of trust must be certain and identifiable - not future property, or expectancy under the will of another 2. must be delivered if trustee 3P 3. empty trust

(injunction) feasibility (how difficult or easy it is for the court to enforce? (5)

1. supervision- court will not issue a decree that will be difficult to supervise 2. negative or mandatory - negative- (prohibitory) decree easy to enforce by power of contempt - mandatory- (order to do an affirmative act) more difficult 3. jurisdiction- decrees requiring acts in other states - problem of supervision/enforcement (contempt) 4. issue- contempt, penalty for violation - criminal- punishes past conduct - civil- compensate for caused harm, coerce future performance 5. collateral bar rule- requires one to comly with court order even if injunction is later found invalid

Law related services?

1. take steps to inform the client that its not law 2. no L/C relationship 3. if L does not take these steps then all PR rules apply

(Transactions) shall not do business transaction with a client unless? (4)

1. terms fair and reasonable 2. fully disclosed in writing 3. advised in writing about opportunity for independent counsel 4. written informed consent signed by C

An attornet client relationship is formed when?

1. the client reasonably believes it has.

(SP) CP is entitled to reimbursement plus interest for educational expenses if the education substantially enhances the earnings capacity of the acquiring spouse unless? (3)

1. the community has substantially benefitted (10-year-rule after ten years community presumed to have substantially benefitted.) 2. education expenses offset by the education/training expenses of the other spouse 3. education substantially reduces the need for support that otherwise would be required. - any loan acquired during the marriage for educational expenses is assigned to the educated spouse at dissolution as SP debt.

check points?

1. the police may not use random checkpoints for the purposes of general crime control in order to stop automobiles where there is no individualized suspicion of wrongdoing. 2. checkpoints that are conducted for the purpose of promoting highway safety ie sobreity checkpoints are generally constitutionally permissible 3. officers must operate under some set guidelines eg stopping every 4th white car

(exclusionary rule exceptions) inevitable discovery rule? (2)

1. they would've found it anyway 2. gov't must prove by a preponderance of evidence

Reverse Pereira? (3)

1. time and skill of managing spouse greater factor in appreciation 2. CP gets a fair rate of return on investment (10%), times years, plus original investment. 3. managing spouse gets remainder

tippee liable if? (2)

1. tipper breached a duty 2. knew or should have known that info was wrongfullt passed

married woman? (2)

1. title in married woman's name alone 2. presumed to be her separate property before 1975 - applies to real and personal property 3. transfer to MW and her husband named, but not designated as her husband she gets 3/4 and he gets 1/4 (because she gets half under the MW exception, and she also gets half from CP which equals 3/4)

wills contracts? (4)

1. to make a will 2. to not make a will 3. to revoke a will 4. to not revoke a will

Misconduct? (6)

1. to violate a rule or assist another 2. criminal acts reflecting L's - honest - trustfulness - fitness as a lawyr 3. conduct involving - dishonesty - fraud - deceit - misrep 4. conduct prejudicial to the administration of justice 5. state or imply ability to influence a gov't agency or official or to achieve results by violating PR rules/law 6. knowingly assist a judge in conduct that violates CJC (Code of Judicial Conduct)

3P liabilities possible cross over areas?

1. torts a. 3P may sue trustee for torts committed by trustee and his agents (personal liability for torts committed within the scope of trust supervision) b. indemnification- trustee not personally at fault and tort normal risk inherent in activity 2. contracts a. personal liability for all k's made within scope of trust supervision unless k states otherwise b. indemnification- if k not a breach of trust

(SP) disability?

1. treat it according to what it replaces 2. if it replaces SP, then it is SP

testamentary trust pt. 2? (3)

1. trust created by a will 2. trust must have material provisions of the trust in the will. 3. trust is effectuated at T's death according to the will

discretionary support? (3)

1. trustee givenb discretion to apply or withhold payments to beneficiary. 2. beneficiary has right to support if in need and to the extent of need 3. same exceptions as above if beneficiary can't pay

spendthrift support? (3)

1. trustee limited to paying specific amount of money for beneciary's lifestyle support 2. effect- same as spendthrift: non-transferability/creditors. Cannot reach unless excepted 3. issue- lifestyle (station in life)/inflation

spendthrift trust?

1. trustee restrained from transferring res to creditors and beneficiary restrained from transferring interest and support. 2. income may not be transferred to creditors until paid to beneficiary. - after it is paid upon petition from the court, creditor can ask for a judgment against beneficiary.

Termination? (4)

1. trustee- no power to terminate except as provided, or purpose accomplished 2. beneficiaries may compel if: a. all competent & b. all consent & c. does not frustrate any purpose of trust (e.g. spendthrift not terminable unless all beneficiaries + settlor agree) 3. settlor- if power reserved & he complies with instrument 4. operation of law- a. purpose frustrated/impossible to complete (cy pres/changed circumstances allows court to modify) ot b. merger (e.g. trustee acquires lie income estate in trust) trustee gets life income and remainder

How do you revoke an offer?

1. unambiguous statement by the offeror to the offeree 2. Constructive Revocation: offeree becomes aware of the offeror's conduct or statement indicating an unwillingness or inability to contract

consideration for stock? (3)

1. under the modern majority rule 2. shares may be paid for by any tangible or intangible property or benefit 3. to the corp.

Restituution (quasi-k)?

1. unjust enrichment 2. benefit conferred

6th amendment denial of due process? (2)

1. unnecessarily suggestive and 2. substantial likelihood of misidentification - remedy= can't use the evidence

holographic will? (3)

1. valid if it contains signature and material provisions in handwriting of testator and has testatmentary intent 2. if no date, and another will, then invalid to the extent of inconsistency unless time of execution is established. 3. statement of testamentary intent can be part of a commerciallly printed will form.

empty trust? (2)

1. valid if named in insurance policy or benefit from a pension plan 2. gift coming from settlor's will is valid

(sh management close corp) sh agreements that bind directors discretion are? (2)

1. void 2. many states allow sh to manage directly if articles provide for it 3. and unanimous sh agreement provides for sh managment

waiver? (4)

1. voluntarily 2. knowing 3. intelligent 4. but not simply silence (because you have the right to remain silent)

dissolution?

1. voluntary 2. involuntary

dissolution voluntary?

1. voluntary- same as merger of unanimous written sh agreement - key limited by fiduciary duty owed to minority

sh issues? (4)

1. voting rights 2. meetings 3. quorum 4. stock transfer restrictions

defenses to miranda violations?

1. waiver 2. spontaneous (not interrogation) 3. not custodial- traffic stop, public safety 4. used for other purposes

When does Pereira and Van Camp apply?

1. when SP business appreciates during the existence of the community 2. apply facts to both Pereira and Van Camp

Reliance? (2)

1. when expectation difficult to calculate or 2. based on detrimental reliance theory

illegally obtained evidence can be used? (2)

1. when in good faith reliance on search warrant or 2. for other purposes a. grand jury b. prelim- hearings c. impeachment d. sentencing e. parole decisions f. immigration proceedings

revival elements? (2)

1. will 1 must still be in existence 2. T's intent to have will 1 take effect - if by physical act see BLL, extrinsic evidence is ok to show T's intent - if by will 3, then by terms of will 3- no extrinsic evidence allowed unless an exception such as duress or undue influence is present

Mistake? (2)

1. will fails due to lack of intent 2. general rule no relief for mistake in inducement unless there was fraud.

revival BLL?

1. will is presumed revoked 2. unless it is evident from the circumstances of revocation or from T's contemporary, or subsequent declaration 3. that T indened the first will to take effect, or 4. terms of wIll #3 shows an intent for will #1 to take effect

lost will presumption (3)

1. will last in T's possession 2. and cannot be found 3. presumed destroye with intent to revoke: burden on proponent

In California, wills contracts must contain one of the following? (4)

1. will or other instrument states material provisions of contract 2. express reference in will or other instrument to a contract, extrinsic evidence proving terms of contract. 3. writing signed by the decendent evidencing a contract 4. clear and convicning evidence of an agreement or promise that is enforceable in equity

satisfaction/advancement elements?

1. will provides for this treatment or 2. T declares in contemporaneous or 3. devisee acknowledges in writing

death? (3)

1. will- may will away 1/2 CP and all SP 2. special issue election- if acquiring spouse dies leaving will expressely devising all CP/QCP to one other than the spouse, spouse may elect to take under the will but relinquish CP/QCP rights, or take 1/2 of the CP/QCP but then must relinquish rights under the will 3. intestate- all property not byt will goes intestate

Direct contact?

1. written solicitations are generally permissible provided thehy are truthful and not misleading 2. electronic advertising allowed 3. must have words "advertising materials" on letter and envelope and at beginning and end of communication 4. no in person, real time electronic, or live solicitation for profit unless: - lawyer OR - family, close, personal or prior professional relationship

120 hour rule? (3)

1. you must survive by 120 hours or be treated as predeceased for intestate succession purposes 2. CP will be evenly divided among spouses' heirs in cases where spouses die within 120 hours of each other - does not apply to a will- if there's a will, law will assume that the devisee predeceased the testator (120-hr rule does not apply)

Defense of Others- requirements

1.D steps in the shoes of the intended target. 2.D may not use greater force than the intended target could have reasonably used 3.Reasonable mistake by D is allowed

Battery - elements

1.Harmful or offensive contact by D to P's person 2.Intent 3. Causation

Self-Defense- requirements

1.No duty to retreat 2.Reasonable mistake by D is allowed 3. Only available to initial aggressor-if D responds to non-deadly force with deadly force.

Confinement to bounded area

1.P must be aware of or harmed by confinement 2.P's freedom of movement must be limited 3. There must be no reasonable means of escape that P is aware of. (if reasonable person could get out, no false imprisonment)

Self-defense, defense of others, and defense of property-requirements

1.Reasonable belief tort is being or about to be committed 2.Proper timing- tort must be in progress or imminent 3. Reasonable force- Must be proportionate to threat of harm- Deadly force allowed if D believes a life in in danger- never permitted to protect property alone

divorce? (3)

1/2 , 1/2 court may award in kind- substantially equivalent deviate where 1. misappropriate 2. separate debt- make spouse better able to pay 3. torts- e.g. tort goes to injured spouse

Defamation

1st A considerations arise when defamation involves a public official and/or a matter of public concern A public figures is one who has pervasive fame or sorority or voluntarily assumes a central tole in a particular public matter A public official is a public office holder A matter of public concern are statements that relate to a community interests or concern, this includes national interests If defamation involves a pubic figure, official/and or public concern, P must prove (1) falsity and (2) fault (1) Falsity-- P must prove the statement was false (2) Fault-- P must prove D was at fault. For a public official or figure the standard is actual malice. Actual malice means knowledge of the statements falsity or reckless disregard as to whether it is false. For private figures negligence is the standard.

Defamation-Constitutional Considerations

1st amend. consideration arise when defamation involves a public figure, public official and/or matter of public concern.

Reasonable Expectation of Privacy

4th A only applies if a person has a reasonable expectation of privacy (REP) regarding the thing or place searched and/or items seized. Standing to challenge a govt. search requires REP. REP is determined by the totality of the circumstances. There is not REP for inherently public things, e.g. handwriting, voice, location, odors, public records, things viewable from public space, garbage placed outside REP ALWAYS exists if Defendant either: 1) Owns, has a right to possess, or lives in the premises to be searched, OR 2) Is an overnight guest of the premises being searched

double jeopardy?

5th amendment applicable to the states via the 14th amendment

Double Jeopardy

A Defendant CANNOT be retried for the same offense once jeopardy has attached; arises when Defendant charged with one crime is charged with another crime based on the same offense Same Offense: Offenses are different if conviction for one offense requires proof of an element not included in the other offense >> Different Offense: First offense requires proof of A & B; second offense requires proof of A, C, & D >> Same Offense: First offense requires proof of A, B, & C; second offense requires proof of A & B E.g. D cannot be charged for larceny after his trial begins for robbery from the sam incident EXCEPTIONS: 1) New evidence for greater offense becomes available 2) D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery When Jeopardy ATTACHES: * Jury Trial: Once jury is impanelled and sworn in * Bench Trial: Once first witness sworn in * Civil Trial: Jeopardy is NOT applicable

Capital Punishment & Defendant's Mental State

A Defendant cannot be executed if he is incapable of understanding the nature and purpose of the punishment at the time of execution

Transferred Intent Doctrine

A Defendant may be held liable if he intends the harm caused, but causes it to a different victim or object than intended. Often applies to homicide, battery, and arson. Does NOT apply to attempt Defenses and mitigating circumstances may also be transferred Effect of the Transferred Intent Doctrine: A Defendant is usually charged with 2 crimes: 1) Attempt (to commit the originally intended crime) 2) The actual resulting crime E.g. D intends to shoot A, but kills B; D can be charged with the attempted murder of A and the actual murder of B NOTE: Merger does not apply because there are different victims

Depositions (Rule 30)

A Deposition is a live, oral proceeding in which an attorney may examine any person under oath. The testimony is sworn and subject to penalties for perjury. Depositions may cover issues within the scope of discovery. A deponent's counsel may object to questions, but deponent is still required to answer, unless an objection is based on privilege counsel can instruct deponent not to answer Depositions are limited to 1 day for 7 hours. Court approval must be sought to take more than 10 depositions or depose the same person twice Parties: A notice of deposition will compel attendance.A 30-day notice is required for production of documents Non-Parties: A non-party may be deposed but must be subpoenaed. A Subpoena duces tecum is used to compel a non-party witness to bring documents to a deposition Businesses: A business may designate a person most qualified to attend a deposition and provide testimony

Motions to Compel (Rule 37(a))

A Motion to Compel allows a party to move for an order compelling disclosures or discovery of requested material. Often arises when discoveree (party holding info) claims withheld materials are privileged The motion must certify the moving party has made a good faith attempt to obtain discovery absent court intervention. A judge will cal hearing to confer with parties regarding dispute and make a decision on whether material may be withheld

Third Party Standing

A P may assert the rights of another where P has suffered and injury either: a) P's Injury adversely affects his relationship with third parties (close relationship): OR >> P may assert the rights of a third party whose injury adversely affects P or his relation with P E.g. Doctor could assert patient's rights in challenging abortion restrictions; bar owner could assert underage male's rights in attacking state ban on beer sales to underage males only b) Injured party is unlikely or unable to assert his own rights >> E.g. Association could attack law requiring disclosure of member identities because members could not attack law directly without revealing their identities

Protective Orders (Rule 26(c))

A Protective Order is a court order issued for good cause limiting, conditioning, delaying, or barring discovery of affected discovery of material. It is sought by the party seeking to prevent disclosure of material that is (1) privileged, (2) highly embarrassing, (3) trade secret, and/or (4) clearly outside the scope of appropriate discovery The moving party must certify that they have or have attempted to meet & confer with the affected parties to resolve the dispute

Class Action Overview (Rule 23)

A class action exists when a representative sues on behalf of group. Only the representative class member(s) must satisfy requirements of PJ, SMJ, and venue. In order to be a class action four requirements must be satisfied: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representative (1) Numerosity: The class size must be so numerous that joinder is impracticable. There is no exact threshold as to class size requirement it depends on context of case and claims (2) Commonality: There must exist some issue in common to all class members so resolution of that issue will generate answers for everybody in one ruling (3) Typicality: The claim or defenses of the class representative are typical of those in the class (4) Adequacy: The class representative must fairly and adequately represent the entire class

Class Action Judgment

A class action judgment is binding to all absent class members, unless they opt-out if applicable

Complaint

A complaint is an initial filing that commences an action. The complaint must contain (1) a short and plain statement of grounds of subject matter jx, (2) a short and plain statement of the claim, showing entitlement to relief, and (3) a demand for relief sought (e.g. damages, injunction, declaratory judgment) Statement of the Claim-- Federal courts use a "notice pleading" which means you only need to plead enough detail to put the other side on notice, the facts plead must support a plausible claim. To determine plausibility, the judge uses her own experience and common sense. Certain claims/issues must be pleaded with particularity, including: (1) fraud or mistake, (2) special damages, and (3) judgments or official documents upon which pleading party will rely Note: Defendant can challenge a complaint by making a Rule 12(b)(6) Motion

Inchoate Offense: Conspiracy

A conspiracy is an agreement between two or more people to commit a crime. A conspiracy ends upon the completion of the target crime. Conspiracy requires: 1) An AGREEMENT between two or more people i.e. a "meeting of the minds." An express agreement is not required, parties do not need to know of each other's existence 2) Intent to ENTER into the agreement 3) Intent to COMMIT the target crime or pursue the unlawful objective 4) An OVERT ACT in furtherance of the target crime. Any slight act will suffice under most modern statutes (not a required element at CL) DEFENSES: 1) Impossibility is NOT a defense to conspiracy 2) Withdrawal is NOT a defense to conspiracy BUT may be a defense to liability for co-conspirator's subsequent crimes

Counterclaim (Rule 13)

A counter claim is a claim against an opposing party, usually this is a claim by defendant against plaintiff. The counterclaim is part of defendant's answer. There are two types of counter claims (1) compulsory which must must asserted in the pending case or it is waived and (2) permissive which is not waived if the defendant fails to assert it. Plaintiff must respond to a counterclaim within 21 days. (1) Compulsory Counterclaim (Rule 13(a)): A compulsory counterclaim arises out of the same T/O of plaintiff's claim. Unless you have already filed the claim in another case you MUST file the claim in the pending case, or the claim is waived (2) Permissive Counterclaim (Rule 13(b)): A permissive counterclaim is a claim that does not arise from the same T/O as any of plaintiff's claims. It may be filed with defendant's answer to plaintiff's complaint, or can be asserted in a separate action filed by defendant Note: Defendant must ensure the court has jx over any counterclaim. Compulsory counterclaims will almost always have supplemental jx.

Legal Relevance

A court may exclude logically relevant evidence if its probative value is substantially outweighed by (1) the danger of unfair prejudice, (2) confusion of issues, (3) misleading the jury, (4) undue delay, or (5) waste of time. Probative value is a matter of degree This often arrises with evidence that is (1) emotionally disturbing, (2) repetitive or disturbing, (3) admissible for one purpose but inadmissible for another (court excludes to avoid risk of jury using evidence for the improper purpose) Note: Unfair surprise to a party or witness is NOT a valid ground for excluding evidence

JUDICIAL NOTICE

A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party. Judicially noticeable facts include facts that are: (1) Capable of verification by a source with unquestionable accuracy (e.g. calendar, alamanac) (2) Generally known within the jurisdiction Laws may be judicially noticeable. Judicial notice of laws includes: (1) Federal and state laws, official regulations. Court MUST take judicial notice (2) All other laws. Court has DISCRETION to take judicial notice (e.g. municipal ordinances, foreign laws, etc.) Effect of Judicially Noticed Fact/Law: (1) In CIVIL cases, a jury MUST take judicially noticed facts as conclusive. (2) In CRIMINAL cases, a jury MAY take judicially noticed facts as conclusive, but is not required to.

Discovery Sanctions

A court may sanction parties for discovery violations, either on its own or upon motion of a party. A court can sanction any type of failure to comply with discovery obligations or court order Sanctions will depend on the type of violation: (1) Partial violations such as, party's making frivolous RFA objections, are less serious discovery violations. A court may: a) Issue order compelling discovery to respond to discovery requests b) Can also award costs to party for bringing motion to compel (including attorney's fees) (2) Complete violations, such as violation of a discovery order, are wholesale violations of discovery rules. A motion to compel is not required before moving for sanctions. A court may: a) Strike Pleadings b) Disallow Evidence c) Establish disputed or unanswered facts as true d) Issue Monetary Sanctions e) Dismiss P's case (very serious, requires bad faith) f) Enter Default Judgment (very serious, requires bad faith) g) Hold Disobedient Party in Contempt of Court

Class Action Certification

A court must determine at an early practicable time whether to allow the case to proceed as a class action (i.e. certify class). If a class is certified, court must: (1) Define the class (i.e. who can be a class member), the class claims, issues and defenses (2) Appoint class counsel who must fairly and adequately represent the interests of the class as a whole Certification can be appealed via interlocutory appeal before final judgment on the merits

Removal Jx

A defendant can remove a case originally filed in state court to federal court if the federal court would have SMJ. Only a defendant may remove and they must remove within 30 days of service (not filing) of the first paper that shows the case is removable. If there are multiple D's then all who have been served with process must join the removal. Defendant can only remove to federal district court embracing state court in which the case was originally filed. In order to remove a case, Defendant must file a "notice of removal" in federal court, stating grounds for removal, which means federal SMJ (diversity or FQ). D makes copies of all documents served in the state action and serves the copy of "notice of removal" on adverse parties and then files a copy of the notice with the state court. Diversity Jx Limitations--If a defendant is removing a case based on diversity jx, they may not remove the case if: 1) Plaintiff filed suit in any defendant's home state (if later instate D's case is dropped the case may become removable 30 days after dismissal, unless its been over a year) 2) OR More than 1 year after the case has been filed in state court, unless the court finds that Plaintiff acted in bad faith by originally joining another instate Defendant to prevent removal Remand--If Plaintiff believes the removal is improper, a court can remand to state court no later than 30 days after the notice of removal was filed in federal court

Service of Process

A defendant is entitled to notice that she has been sued. Usually this consists of (1) the summons (formal court notice of the suit and time for response) and (2) a copy of the complaint. Together these two documents are called service of process. Any nonparty who is over 18 years old can serve process. Service must be within 90 days of filing of the case. If not, the case is dismissed without prejudice, unless plaintiff shows good cause for delay.

Methods of Service of Process

A defendant may be served by: (1) Personal Service--Papers are given to D personally (2) Substituted Service--Process is left at D's usual abode and serve someone of suitable age and discretion who resides there (3) Service on D's Agent--Process can be delivered to D's agent (4) OR Any method permitted under state law where the federal court sits

Consent-Definition

A defense to all intentional torts. If P consents to D's otherwise tortious conduct-D not liable. Capacity required of P (drunk, mentally impaired, children incapable of consent) 1. Express 2. Implied

Necessity-Definition

A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P's property in an effort to avoid a greater danger

Recapture of Chattels

A defense to trespass D may use peaceful means to recover possession of chattel taken unlawfully.

Detentions

A detention is a governmental seizure of a person that is lesser than an arrest. Common govt detentions include: (1) Stop & Frisk ("Terry Stop"): Requires reasonable suspicion (2) Automobile Stop: Requires reasonable suspicion (3) Stationhouse Detention: Probable cause required to compel a person to enter a govt. location for fingerprinting, questioning, etc. (4) Detention to Obtain a Search Warrant: Requires probable cause. If police have probable cause to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant. Purpose must be to prevent destruction of evidence (5) Detention of Occupants of a Premises: If police have a valid warrant to search premises, they may detain occupants for duration of the proper search

In enforcing contracts, what is the most likely instance of a unilateral mistake that the nonmistaking party had "reason to know" of?

A dramatic difference in price.

Actus Reus: Omission

A failure to act (omission) can constitute acts reus if: 1) Defendant had a specific legal duty to act; 2) Defendant had knowledge of facts giving rise to the duty; AND 3) It was reasonably possible for Defendant to perform the duty

Procedural Due Process

A fair process (e.g. notice, hearings) is required for a govt agency to take or deprive a person's life, liberty or property Analysis: 1) Has there been a deprivation of life, liberty or property? >> Liberty Deprivation--Loss of a significant freedom of action or freedom provided by Const. or statute (e.g. institutionalization, govt restriction of fundamental rights) >> Property Deprivation--A legitimate claim or entitlement to a benefit under law, which goes unfulfilled and have reasonable expectation to continue receipt 2) What procedures are required? Determined by balancing: a) Importance of the individual interest involved; AND b) Value of procedural safeguards to that interest, against c) Govt interest (i.e. fiscal or administrative efficiency) Examples: Procedural Due Process Requirements arise with: * Terminating welfare/social security benefits; separating child from parents; punitive damages awards; enemy combatant status for citizens obtain in foreign countries Govt negligence is insufficient, it needs to be intentional or reckless conduct EXCEPTION: Govt is liable in emergency situations where the conduct "shocks the conscience" Govt has no duty to protect from private harms, unless: 1) Govt creates a danger OR 2) Person is in custody

Transfer of Venue

A federal district court may transfer a case to another federal district court if the the transferee district is one in which the case could have originally been filed (i.e. proper venue, PJ and SMJ). Transfer is discretionary, the court may order transfer based on convenience of parties and witnesses, and /or the interests of justice. The court's discretion is based on private and public factors showing that the transferee court is the center of gravity (i.e. where it should be). * Public factors include things like what law applies, what community should be burdened with jury service, etc. * Private factors include convenience (e.g. location of witnesses and evidence) The transferee court applies choice of law rules of the original court, regardless of which party sought transfer. Transferee court will apply its own laws if original venue was improper If venue in the original district is improper a court may transfer in the interest of justice or dismiss the case

What kind of gratuitious bailment requires a high degree of care from the bailee?

A gratuitous bailment for bailee's benefit

Present Sense Impression

A hearsay statement is admissible if it (1) describes or explains an event or condition, and (2) is made contemporaneously with the event or immediately thereafter. **TIMING IS KEY** CA: Declarant engaged in conduct

Excited Utterance

A hearsay statement is admissible if it (1) relates to a startling or exciting event or condition, and (2) was made while the declarant was under the stress or excitement of the event **DECLARANT'S EMOTIONAL DISTRESS IS KEY: Declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement**

Statements Against Interest

A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant. Requires that: 1) The declarant is currently unavailable 2) Statement was contrary to declarant's pecuniary, propriety, or penal interest when made; AND 3) A reasonable person would not have made the statement unless he believed it to be true CA: Include statement made against a declarant's social interest because it risks making the declarant an object of "hatred, ridicule, or social disgrace in the community" Note: In CRIMINAL cases, there MUST be corroborating circumstances indicating the trustworthiness of the statement

Dying Declarations

A hearsay statement is admissible in CIVIL cases or HOMICIDE cases if the declarant made the statement (1) under the belief of impending death and (2) the statement describes the cause or circumstances of the impending death Requires: 1) Declarant is currently unavailable 2) The out-of-court statement was made under the belief of impending death 3) The statement was made regarding cause or circumstances surrounding the belief of impending death **Death of declarant NOT required. Declarant must only have believed he was dying when the statement was made CA: Requires declarant to die

Overbreadth

A law is overbroad if it regulates substantially more speech than the Const. allows to be regulated * An overbroad law restricts unprotected speech, but in doing so restricts protected speech >> E.g. Law prohibiting all "live entertainment" restricts obscenity (valid), but also prohibits protected speech in concerts or theaters (invalid) *If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected Note: "Fighting words" statutes are unconstitutionally vague and overbroad and will not be upheld

Vagueness

A law is vague if a reasonable person cannot tell whether speech is prohibited or permitted * E.g. Law prohibiting people from assembling and conducting themselves "in a manner annoying to passersby"--unconstitutionally vague b/c a reasonable person must guess at to what behavior is punishable Note: "Fighting words" statutes are unconstitutionally vague and overbroad and will not be upheld

Contract

A legally enforceable agreement or promise

Requirement for conversion

A longer and/or more damaging use of P's chattel gives rise to conversion.

Misc Defense: Mistake of Fact

A mistake of FACT is an available defense ONLY if it negates a requisite intent element (i.e. mens rea) for the crime NOTE: Mistake incldues IGNORANCE Specific Intent Crimes: Any mistake of fact is a defense Malice & General Intent Crimes: Only a reasonable mistake of fact is a defense Strict Liability Crimes: Mistake of fact is never a defense

Misc Defense: Mistake of Law

A mistake of LAW is lacking awareness or knowledge (intent) that an act constitutes a crime, even if reasonable, it is not a defense to that crime. EXCEPTIONS: Very rare 1) Reasonable reliance on an invalid statute 2) The crime itself requires knowledge of the law

Extraordinary Writs

A party aggrieved by an unappeasable order may seek a writ of mandamus or writ of prohibition to compel or prohibit lower court action. The party must show irreparable harm will occur and normal route of appeal is inadequate

Standing

A party must have a concrete interest in the outcome of the a claim to have it heard in federal court Requirements: 1) Injury--P must have suffered some injury or show a likelihood of imminent injury >> Note: Look for P's who have personally suffered injury or economic loss >> P's seeking an injunction or declaratory relief must show a likelihood of future harm (e.g. choke hold case) 2) Causation and Redressability--P must allege that D caused the injury and that the court can grant a proper remedy No generalized grievances--P cannot sue solely as U.S. citizen or taxpayer to compel the govt to act in a particular way EXCEPTION: Taxpayers have standing to challenge specific govt expenditures pursuant to the Establishment Clause ($ only) Congress--Cannot automatically confer standing, but can create new rights that, if violated, may give rise to standing * Members of Congress lack standing to challenge vetoes or any action that is institutional (e.g. shared by all members of Congress) rather than concrete and personal

Claim Preclusion (Res Judicata)

A party that has had an OPPORTUNITY to litigate a claim cannot relitigate the claim once final judgment has been rendered (i.e. parties can only sure on a claim or COA once). Claim preclusion is an affirmative defense, should be raised in defendant's answer A new claim will be precluded if: (1) Same Parties: The second case was brought by the same party against the same party (i.e. same P against same D) (2) Same Claim: Same claims in the first and subsequent suit * Claim refers to that transaction or series of transactions or occurrences giving rise to the action, even if not previously raised, claim can be precluded if it is sufficiently related to prior claims (3) Final Judgment on the Merits in Original Claim * A case is final even if it is being appealed * Judgment is on merits except if based on either: a) Jurisdiction b) Venue, or c) Indispensable Parties

Who can waive a condition?

A person who is protected or benefited by the condition may make statements which constitute a waiver of the condition or estop the condition from being enforced.

Habit

A person's habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion. The conduct must be highly specific and frequently repeated (i.e. a person's regular response to a specific set of circumstances) Note: Look for regular, instinctive, habitual conduct E.g. Evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at the time in question

Trespass to Land-Definition

A physical invasion of P's real property by D

Economic Rights

A rational basis test is used for economic rights, unless the infringement falls under the Contracts Clause or Takings Clause. The Const. provides only minimal protection for economic liberties (laws affecting or amounting to a taking of one's economic rights)

How long is a merchant's firm offer good for?

A reasonable time, not to exceed three months.

Lost Profits

A seller can recover lost profits from a buyer's breach, even though she resold the item that was the subject of buyer's breach, if she can prove that she would have made a sale to the second buyer regardless of the first buyer's breach.

Defamation-Definition

A statement concerning P, made by D to a third person, that is harmful to P's reputation

Pre-Trial Line-Ups & Showups

A suspect has a right to counsel in any post-charge, in-person lineup or showup. This does NOT apply to non-live identification procedures (e.g. photo lineups, fingerprinting) Lineup: Witness is shown several possible suspects Showup: Witness asked to identify a single suspect Due Process Considerations: Defendant can attack pretrial identification procedures as denial of due process rights if: 1) Identification is unnecessarily suggestive; AND 2) There is a substantial likelihood of misidentification. This is determined under the totality of the circumstances. Remedy for Violation: Defendant may move to suppress any subsequent in-trail identifications made by the witness NOTE: Remedy for a violation is rare because govt. can often prove the identifying witness has an independent source of identification to overcome exclusionary rule

Competency

A testifying witness must be competent. Competency qualifications require: (1) personal knowledge, (2) present recollection, (3) communication, and (4) sincerity. Diminution of any of the above capacities usually goes only to the weight of the testimony (i.e. makes W less persuasive) (1) Personal Knowledge: W's testimony must be based on her own perceptions (e.g. what W saw or heard). Perception need not be perfect (e.g. W testifies he saw the D shoot the V, but admits lighting was poor) (2) Present Recollection: W must testify from present memory, not from a record of matters the W once know but has since forgotten. (3) Communication: W myst be able to relay her perceptions, either directly or indirectly through an interpreter. (4) Sincerity: W must take an oath or affirm to tell the truth

Competency

A testifying witness must be competent. Competency qualifications require: (1) personal knowledge, (3) present recollection, (3) communication, and (4) sincerity. Diminution of any of the above capacities usually goes only to the weight of the testimony (i.e. makes W less persuasive) (1) Personal Knowledge: W's testimony must be based on her own perceptions (e.g. what W saw or heard). Perception need not be perfect (e.g. W testifies he saw the D shoot the V, but admits lighting was poor) (2) Present Recollection: W must testify from present memory, not from a record of matters the W once know but has since forgotten. (3) Communication: W myst be able to relay her perceptions, either directly or indirectly through an interpreter. (4) Sincerity: W must take an oath or affirm to tell the truth

Impeachment by Reputation for Untruthfulness

A witness may be impeached by testimony describing her reputation for untruthfulness in the community.

Impeachment by Prior Misconduct

A witness may be question on CROSS-EXAM about any prior misconduct probative of truthfulness (i.e lying or deceit). No extrinsic evidence is permitted, a witness may only be asked about prior misconduct; the questioning attorney must accept the witness's answer. Arrests are NOT misconduct--Must be an act of lying

Impeachment by Prior Inconsistent Statement (PIS)

A witness's prior inconsistent statements may be used to impeach a witness's present testimony. A PIS may be established through cross-examination or extrinsic evidence. Extrinsic evidence is inadmissible if the PIS relates to a collateral matter. A witness must have an opportunity to explain or deny the statement (NOT required for PIS by hearsay declarant) If PIS is hearsay, it is ADMISSIBLE for impeachment purposes, but INADMISSIBLE as substantive evidence (to prove TOMA) i.e. Hearsay PIS may only be considered for its bearing on W's credibility. If the PIS is NOT hearsay or if it falls under a hearsay exception, it may be considered for any purpose.

Strict Liability :Abnormally Dangerous Conditions

Abnormally Dangerous or ultrahazardous activities or conditions give rise to strickt liability for any resulting injuries.

Right to Abortion

Abortion is a fundamental privacy right Analysis--Turns on the viability of the fetus * Viability = When fetus can survive outside the womb * Pre-Viability--Regulation must not unduly burden abortion >> States may to prohibit abortion, but may regulate as long as it does not create an undue burden >> Examples: * Undue burden--Spousal Notification * No Undue Burden-- 24-hr waiting period; Partial-birth abortion bans; Parental Consent Requirements * Post-Viability--Prohibition on abortion is allowed unless medically necessary to protect the mother's health Parental Notice/Consent Laws for Minors--No undue burden if: 1) The law creates an alternative procedure whereby a minor can obtain an abortion by going before a judge 2) The judge can approve the minor's abortion by finding either: a) Abortion is in the minor's best interests; or b) The minis is mature enough to decide for herself Subsidies--Govt has not duty to subsidize abortions or provide abortions in public hospitals

Public Necessity- requirements

Absolute Defense D's invasion of P's property must be reasonable necessary to protect the community or a large group of people Absolute defense- P cannot recover any damages

Defenses to Defamation: Privilege-types

Absolute or qualified

Defenses to Defamation: Privilege

Absolute privilege: protects statements by gov't officials in their official capacity Qualified privilege: D's liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness and/or related to fair comment and criticism. (letters of recommendation, employment reference, book review, reports of public proceedings).

Governing Law - UCC/CL Distinctions

Acceptance: (R) Under the common law, acceptance must mirror the offer. Under the UCC, however, if both parties are merchants, additional terms become part of the contract unless they materially change the offer or the offeror objects. Option Contracts (R) Under the common law, option contracts require consideration or reliance. Under the UCC, however, option contracts (firm offer), no consideration required, and is irrevocable for time stated, or up to three months if no time stated, but is permanently irrevocable if consideration provided. Contract Modification (R) Under the common law, consideration is usually required. Under the UCC, however, no consideration is required, only good faith. Substantial Performance/Perfect Tender (R) Under the common law, if there is substantial performance by one party to a contract, the other party must perform (or pay). Under the UCC, however, the buyer is not required to pay unless seller makes a perfect tender of goods.

Prima facie case of intentional tort

Act by D- volitional movement intent - specific and general causation

False imprisonment Act or Omission requirement

Act or omission resulting in P're restrain or confinement: 1. Does not have to be physical (threats of force, invalid use of legal authority). 2.Duration not important-brief will suffice

Negligence: Duty of Care for owners & occupiers of land to Licensees & Invitees- duty of care owed

Activities carried out on property-reasonable care. Known Dangerous Substance- duty to warn or make safe Duty to inspect- n/a for licensees. Invitees-owners have duty to conduct a reasonable inspection for non-obvious dangers and make them safe. Note this is the only significant difference between duties for licensees and invitees.

Actus Reus

Actus reus the act required to commit a given crime. It is a required component of every common law crime. Defendant must perform a voluntary physical act (i.e. voluntary bodily movement)

Renewed Motion for Judgment as a Matter of Law aka RJMOL or "judgment notwithstanding the verdict" or "JNOV"

After court enters judgment based on jury verdict, the losing party can file RJMOL for entry of judgment in his favor. This must be filed 28 days after entry of judgment and can only be filed if a JMOL was originally filed. Court may grant RJMOL if reasonable people could not disagree (i.e. could not disagree verdict was wrong). Court views evidence in light most favorable to nonmoving party

Rational Basis Classifications

All classifications not qualifying for SS or IS receive RB review Examples: * Age * Disability * Wealth * Economics * Sexual Orientation Discrimination [Also alienage classifications arising from congressional regulation of immigration or relating to self-goat and the democratic process]

Grounds of Disqualification

Almost all other grounds for witness disqualification, besides competency, have been abolished. Only the judge and jurors are absolutely disqualified from testifying. (1) Religious beliefs are inadmissible to attack a witness's credibility (2) There is no age limit or requirement (3) Hypnotization allowed under FRE, limited under CEC

Right to Travel and Right to Vote under EP

Although both the right to travel and right to vote are both FR that can be analyzed under SDP, they often arise as classification issues requiring EPC analysis Right to Travel--SS * Usually arises when laws impede movement between states * Durational Residency Requirements--Laws requiring some period of in-state residency to qualify for a state benefit >> Invalid Residency Requirements: 1-yr residency to receive welfare, subsidized medical care, to vote in state elections >> Valid Residency Requirements: 30-day residency to vote in state elections; 1-yr residence to get a divorce Right to Vote--SS * Arises when laws that deny some citizens the right to vote * The "one person, one vote" requirement must be met for all state and local elections >> For elected bodies, voting districts must be similar in population * At-large districts, when voters vote for all office holders, are constitutional

Accomplice Liability

An accomplice is one who AIDS, ENCOURAGES, or COUNSELS principals committing a crime, with the intent to encourage its commission. Mere presence at the crimes not enough; there must be some assistance An accomplice is liable for the original crime and other foreseeable crimes committed by the principals in its furtherance

Invoking Miranda Rights

An accused may terminate an interrogation at any time by invoking (1) his right to remain silent or (2) requesting counsel Invoking Right to Silence: Police must cease all questions. Only the accused can re-inititate dialogue. Police may later question accused about unrelated crimes Invoking 5th A Right to Counsel: Police must cease all questions on ANY topic until counsel is provided and present. If accused initiates communication, interrogation is allowed >> NOTE: This is different from 6th A Right to Counsel, which is offense-specific and does not attach until charges have been filed

Reliance Damages -

An alternative measure of damages when damages are too speculative. Reliance damages are designed to compensate the plaintiff based on the value of her performance. (puts parties in the same economic position as if contract was never formed) Only applicable when expectation damages are overly speculative

Arrests

An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation. Probable cause is always required for any valid arrest. Probable cause is trustworthy facts or knowledge sufficient for a reasonable person to believe the suspect has committed or planning to commit a crime, Warrants are rarely required for arrests. Unless an arrest occurs in the arrestee's own home, the govt does not need a warrant to make an arrest. A warrant is not required for an emergency arrest occurring in the arrestee's home

Assignment - Enforcement and Recovery

An assignee can recover from the obligor. An assignor for consideration cannot recover from the obligor. Payment by obligor to an assignor is effective until obligor knows of the assignment.

Attorney Client Privilege?

An attorney shall not reveal a matter to representation.

Termination of Easements

An easement may be terminated in the following ways: (1) estoppel, (2) necessity ends, (3) destruction of servient tenement, (4) release, (5) abandonment, (6) merger, (7) prescription, or (8) expiration.

Statutory Standard of Care & Negligence Per Se-Definition

An existing statute may establish a duty of care, in which case the specific duty imposed by the statute will replace the general common law duty of due care

Assault

An intentional act by D creating P's reasonable apprehension of immediate harmful or offensive contact to P's person.

Battery

An intentional harmful or offensive contact to P's person by D.

False light

An invasion of privacy - widespread publication of falsehood or material misrepresentation about P that is highly offensive to reasonable person- includes?

Can an unpaid seller can never reclaim goods from later buyers?

An unpaid seller can never reclaim goods from later buyers. In such cases the unpaid seller is limited to money damages from the first buyer.

Ancient Documents

Ancient documents are admissible hearsay if: (1) They are 20 or more years old (2) Does not preset any irregularities on its face (3) AND Found in a place of natural custody

Strict Liability: Animal Conduct-Property Damage

Animal owners are strictly liable for reasonable, foreseeable, damage resulting from their animal's trespass on another's property.

Impeachment by Contradiction

Any evidence may be used to show a witness had made contradictory statements on material issues.

5th A Privilege Against Self-Incrimination

Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself The privilege is ONLY available for compelled testimonial or communicative evidence. Compelled means elicited or induced. Evidence produced from Defendant's free will is not compelled (e.g. D's diary). Lie detector tests custodial interrogations, etc. are compelled and 5th A privilege will apply. Testimonial evidence is verbal or otherwise communicative evidence (lineups and physical evidence is not testimonial). Privilege does not apply if: 1) Grant of Immunity: Govt. CAN grant immunity from prosecution for self-incriminating testimony 2) Incrimination Is Not Possible: e.g. SOL has run 3) Extinguished by Waiver: Defendant waiver privilege NOTE: At trial, prosecution CANNOT comment on Defendant's silence or failure to testify

If you see prior bad acts being offered for admission, what should you look for?

Anything other than character, like motive, habit, etc.

Appeals & Final Judgment Rule

Appellate courts look at potential errors on questions of law, not questions of fact An appeal may only be taken from a final judgment, meaning the trial court has made an ultimate decision on the merits of the entire case. Without final judgment or basis for interlocutory appeal, appellate court lacks jx EXCEPTIONS: (1) Orders involving injunctions may be appealed without final judgment (2) Orders involving certifications of class actions maybe appealed in discretion of Court of Appeals (3) Orders involving debatable questions of controlling law may be appealed without final judgment Trail court may direct entry of final judgment as to one or more party and/or claim, which is then appealable A notice of appeal must be filed in trial court within 30 day of ENTRY of final judgment

Appointment Power

Appointment Power * President--Can appoint ambassadors, federal judges, and other high-level officers with the advice and consent of the Senate * Congress--Cannot give itself appointment powers >> Can vest power to appoint inferior officers in President, courts, heads of departments or agencies >> Inferior Officer = Usually those working under presidentially-appointed officers (i.e. can be fired by the appointed officer)

Vicarious Liability

Arises when D commits a tort against P and a 3rd person is held liable due to his relationship with D

Malicious Prosecution -definition

Arises when D initiates a frivolous charge or claim against P with an improper purpose (file false police report).

Abuse of Power- definition

Arises when D uses the legal system as an ulterior purpose to threaten or act against P

Intentional Interference with Business Relations-definition

Arises when a 3rd party interferes with an existing contract

Crimes Against the Dwelling: Arson

Arson is the malicious burning of a dwelling house of another. Arson requires: 1) Malicious: With intent or extreme recklessness 2) Burning: Requires some damage to structure caused by fire. Damage from smoke, water, or explosions is NOT sufficient at CL 3) Dwelling House: Structure where someone lives (CL requirement) NOTE: On the MBE it can be a non-residential structure 4) Of Another: Another person's house. At CL, there can be no arson if you own the dwelling but do not reside there 5) Damages: There must be charring or something more. Discoloration, blackening, or other lesser damage is insufficient

What is the difference between privileges and immunities IV and privileges and immunities 14th?

Art IV: Protects out of staters against discrimination, Intermediate scrutiny. 14th: "Right to travel," strict scrutiny.

Foreign Policy: Treaties & Executive Agreements

Article III gives the President authority to make treaties, appoint ambassadors, and act as Commander in Chief of the military Treaties--Agreements between the U.S. and foreign countries negotiated by the President * Become effective upon 2/3 ratification by the Senate, but do not need Senate consent to void * Conflicts: If a treaty conflicts with other sources of law, these rules control >> Conflicts with state law -- Treaty prevails >> Conflicts with federal law -- Most recent prevails >> Conflicts with Const. -- Const. prevails Executive Agreements--Agreements reached between the President and foreign heads of state * Can be used for any purpose * No congressional approval is required * Conflicts: Executive agreements only prevail over conflicting state laws

How can a party get in evidence of them saying they'll be somewhere (for alibis)

As a declaration of present state of mind as circumstantial evidence that they were somewhere else (which is relevant)

D's original intent transfers to the tort actually committed and/or person actually harmed, resulting in D's liability in what types of charges?

Assault, battery, false imprisonment, and trespass to land or chattel.

Border Searches

At borders, officials may conduct routine searches of persons and their effects (including vehicles) without a warrant, probable cause, or reasonable suspicion. The border includes any place where one can arrive in the U.S. for a foreign country (e.g. there is a "border" at Denver International Airport) Detentions: Officials MAY detain a traveler at the border if they have reasonable suspicion she is smuggling contraband International Mail: Officials can open and inspect international mail if they have reasonable suspicion it contains contraband

Pre-Trial Disclosures

At least 30 days before trial, parties must give detailed information about evidence to be used at trial, e.g. documents to be used as evidence, identity of witnesses to testify, etc.

Expert Witness Disclosures

At least 90 days before trial, parties must disclose and identify experts who may be used at trial and produce a report containing experts' opinion, data used, qualifications, how much the expert is being paid, etc. Note: Facts known and opinions rendered by CONSULTING experts, an expert hired to help prepare the case but does not intend to call that expert to testify at trial, are generally NOT discoverable, only in exceptional circumstances

Inchoate Offense: Attempt

Attempt is an act, done with INTENT TO COMMIT a crime, that constitutes an overt or substantial step towards committing the crime, but FALLS SHORT of completing the crime i.e. an incomplete act that wold be a crime if completed Attempt requires: 1) An OVERT ACT: The Defendant must commit an act BEYOND mere preparation. Defendant must take a substantial step towards committing the target crime 2) INTENT: Defendant must intend to commit a particular crime DEFENSES: 1) LEGAL impossibility (not actually a crime) IS a defense 2) FACTUAL impossibility (cannot commit crime) is NOT a defense 3) Abandonment is NOT a defense--under majority rule, liability for attempt arises once Defendant commits an over act concurrently with the intent to commit a crime (i.e. D is liable for attempt before he can abandon the crime) 4) MPC allows abandonment if it is (a) fully voluntary and (b) is a complete abandonment of criminal purpose

Bargaining vs Counteroffer

Bargaining is not a counteroffer Bargaining = response to offer is a question Counteroffer= response to offer is a statement

Crimes Against Person: Battery

Battery is an unlawful application of force to the person of another resulting in bodily injury or offensive touching. Battery is a general intent crime NOTE: May have an "aggravated" counterpart which usually arises when carried out with the use of a weapon

In a criminal trial, why can affirmative defenses be allowed to be proven by preponderance, but not negations of elements of a crime?

Because with negating the element of the crime, the standard as applied to the prosecution is to prove beyond reasonable doubt. This would give them a shortcut.

If a principal has given an agent authority to enter a contract, but the agent leaves the principal undisclosed to the third party, who can be held liable?

Both the principal and the agent.

Damages for UCC Contracts

Breach by seller and buyer keeps good: (R) [FMV of perfectly delivered goods - FMV of goods actually received]. Note, however, that if seller breaches by delivering non-conforming but superior goods, buyer is not responsible. Breach by seller and seller keeps or buyer returns goods: (R) The higher of either: (1) [FMV of goods at the time of breach - contract price], or (2) [buyer's cost of covering/replacing good - contract price] Breach by buyer and buyer has goods: (R) Contract price Breach by buyer and seller has goods: (R) Either: (1) [contract price - market price at the time of delivery], or (2) [contract price - resale price plus provable lost profits]. A seller can recover lost profits from a buyer's breach, even though she resold the item that was the subject of buyer's breach, if she can prove that she would have made a sale to the second buyer regardless of the first buyer's breach.

Negligence: Breach of Duty: Actual Cause- Burden shifting test

Burden shifting test: for several possible causes of P's injury: Used if multiple D's act (often simultaneously) only one causes P's in jury but unclear which D caused injury. (p hit by stray bullet at busy firing range. and its unknown which shooter hit P. Burden of proving actual cause shifts to Ds if no D can provide another d/ was responsible, all D's are jointly and severally liable. Note MBE may refer to actual cause as " cause in fact"

Crimes Against the Dwelling: Burglary

Burglary is the breaking and entering into the dwelling house of another at nighttime with the intent to commit a felony therein Burglary Requires: 1) Breaking: Can be actual (opening or enlarging) or constructive (entry by threat, force, fraud or duress). Entering with consent or through a wide open door is NOT breaking 2) Entering: Placing any portion of the body or the instrument used for the breaking inside the dwelling 3) Of Another: Ownership is irrelevant; occupancy will suffice 4) At Nighttime: CL requirement. Not required element under modern statutes 5) With Intent to Commit a Felony Therein: Modern statutes include misdemeanors. Felony need not be completed; Defendant must merely intend to commit a crime at the time of the breaking and entering. Intent acquired after entering is insufficient NOTE: On MBE, apply modern rules unless otherwise instructed

(character) prior inconsistent statments for its truth?

CA does not require the statement to be made under oath like the FRE.

Expressions of Sympathy (CALIFORNIA)

CA makes INADMISSIBLE in CIVIL actions expressions of sympathy relating to suffering or death of an accident victim. However, accompanying statements of fault made in connection with such an expression are admissible

Crimes Against Person: Rape

CL: Rape is the unlawful carnal knowledge of a woman by a man other than her husband, without effective consent Modern Law: Rape is sexual intercourse by force or threat of force without consent. The slightest penetration is sufficient to complete the crime. Marital status is insignificant. Lack of consent exists if: 1) Penetration is accomplished by force or threat of immediate bodily injury 2) Victim's is incapable of consenting due to lack of capacity i.e. unconsciousness, intoxication, etc.; OR 3) Victim is fraudulently caused to believe that act is not intercourse NOTE: Fraud or trickery alone does NOT constitute rape. There must be penetration without contemporaneous consent or capacity to consent. E.g. Convincing someone you plan on marrying them in order to have intercourse is NOT rape

Judgments & Prior Convictions

Certified copes of judgments are admissible in both civil and criminal cases to prove any fact essential to the judgment. Prior convictions are INADMISSIBLE in criminal cases against non-defendant's unless used for impeachment

Character Evidence

Character evidence describes a person's disposition with respect to general traits. Character evidence is generally inadmissible.

Children's standard of care

Children: held to the standard of care of a like child of similar age, education, intelligence and experience (subjective test). Generally, children under 7 lack capacity to be held negligent

What is the difference between the presumptions created by judicial notice in civil and criminal cases.

Civil cases are irrebutable. Criminal cases do not require the jury to accept the presumption.

Settlements, Offers to Settle, & Plea Bargaining

Civl Cases: In civil cases, compromises, offers to settle or related statements are INADMISSIBLE to prove liability or fault. This does not include statements made before the claim or threat of litigation was asserted Criminal Cases: In criminal cases, pleas offers to plea, an related statements are INADMISSIBLE to prove guilt. This includes not just pleas of guilty but also nolo. CA: Discussions during mediation proceedings are also inadmissible

Settlements, Offers to Settle, & Plea Bargaining

Civl Cases: In civil cases, compromises, offers to settle or related statements are INADMISSIBLE to prove liability or fault. This does not include statements made before the claim or threat of litigation was asserted Criminal Cases: In criminal cases, pleas offers to plea, an related statements are INADMISSIBLE to prove guilt. This includes not just pleas of guilty but also nolo. CA: In CA, discussions during mediation proceedings are also inadmissible

Alienage Classifications

Classifications based on alienage are suspect classifications requiring review under strict scrutiny, subject to certain exceptions. Alienage relates to citizenship status EXCEPTIONS--Rational Basis applies if the classification is: 1) Related to self-goat and the democratic process; OR >> Often arises where job applicants are denied govt employment based on their citizenship status >> Areas where alienage classifications have been upheld under RB review: * Voting * Serving on a jury * Working as a police officer * Working as a teacher * Working as a probation officer >> Working as a notary public is NOT integral to self-goat and the democratic process 2) A congressional law regulating immigration. Congress has plenary powers to regulate immigration Note: Undocumented Aliens are NOT considered a suspect class. Rather they are analyzed under IS

Classifications Based on Race OR National Origin

Classifications based on race or national origin are suspect classifications requiring review under strict scrutiny Classifications Benefitting Minorities (Affirmative Action) * Quotas--To be valid, require clear proof of persistent and readily identifiable discrimination, which cannot be based on general past wrongs. Quotas are unlikely to be upheld * Admissions--Educational institutions may use race or national origin as a factor in determining admission decisions, but not as a defining criterion >> E.g. An admission process that awards "points" to some applicants based on race is unconstitutional * Public School Integration--Public school systems may not assign students to schools on the basis of race to achieve integration

Proving Discriminatory Classification

Classifications must be discriminatory to be reviewed under heightened scrutiny (intermediate or strict scrutiny) There are 3 ways to prove a discriminatory classification: 1) Law discriminates on its face--By its terms, the law treats classes of people differently 2) Facially-neutral law applied in a discriminatory manner--The law does not create a classification by its terms, but does so as applied (e.g. only men arrested under an otherwise valid law) >> Proving Classification--P can demonstrate either: a) Disparate Impact--The law has a discriminatory impact (i.e. it creates a classification), or b) Disparte Treatment--There is discriminatory intent behind the law 3) Discriminatory motive/purpose behind the law--Demonstrating discriminatory impact alone is not enough; there must be evidence of govts discriminatory motive

Commercial Speech

Commercial speech deals with an economic transaction. Commercial speech is not protected if it is either: 1) False, misleading, or deceptive, or 2) Illegal or concerns illegal activity *The govt may regulate unprotected commercial speech Govt can only regulate protected commercial speech (i.e. not misleading or unlawful) if the regulation: 1) Serves a substantial govt interest 2) Directly advances that govt interest; AND 3) Is narrowly tailored to server that govt interest * A valid commercial speech regulation must be narrowly tailored, but not necessarily the least restrictive alternative

Attorney-Client Privilege

Communications between an attorney and client or client's representatives are privileged in all proceedings unless waived. For organizational clients, the privilege applies to any employee authorized to speak to the attorney. To be protected, a communication must be: (1) Intended to be confidential; AND (2) Made ot facilitate legal services. The privilege does NOT apply if: (1) A client seeks legal services to further a fraud or similar crime; OR (2) If the communication related to an alleged breach of the attorney's duty (i.e. attorney defending a malpractice claim)

Statutory Standards of Care & Negligence Per Se does not apply if:

Compliance is more dangerous than non-compliance Compliance is impossible under the circumstances

Condition Subsequent

Condition that occurs after performance has begun and excuses further performance.

Necessary & Proper Clause

Congress can exercise constitutionally-enumerated powers and all auxiliary powers that are necessary and proper to carry out those enumerated powers Not an independent source of power--The N&P Clause does not confer free-standing, independent source of power to Congress; it must be used in conjunction with another federal power Note: Because the N&P Clause is not a source of congressional power, it is usually an incorrect answer choice on to MBE questions regarding Congress' power to act, unless linked to another source of power

Congressional Delegation of Powers

Congress has broad authority to delegate legislative powers to executive officers and administrative agencies * Administrative agencies established by congressional enabling acts can create rules that have the status of law. Limitations: >> Congress must provide intelligible standards to define the scope of legislative authority it delegates >> Congress may not delegate executive or judicial powers to itself or its officers (e.g. Congress cannot create commissions that enforce or prosecute violations of law) Note: B/c the delegation power is broad, be wary of answer choices regarding excessive delegation Legislative & Line-Item Vetos--Unconstitutional * Legislative Veto--Congress cannot veto a decision by an agency acting pursuant to delegated power. It must be overturned by enacting a superseding law * Line-Item Veto--President cannot veto part of a bill; would be impermissible delegation of power to the President For Congress to act there must be: 1) Bicameralism--Passage by both House & Senate; AND 2) Presentment--Give bill to President to sign or veto in its entirety

Congressional Police Power

Congress has no general police power; except for legislation concerning: 1) Military 2) Indian Reservations 3) Land--i.e federal land or territories 4) District of Columbia

Taxing & Spending Power

Congress may tax and spend in any way deemed necessary for the "general welfare" (a very broad power) >> Note: "General welfare" as an answer choice is usually correct only if question concerns taxing, spending, or an area within Congress' limited police power (military, Indian reservations, land, D.C.) >> Taxes must reasonably relate to to revenue production (a very low threshold) Regulations--Congress can use taxing power to achieve a regulatory effect as long as the tax's dominant intent is to raise revenue and there is some reasonable relationship between the tax and the regulation (low burden to satisfy) Ad Valorem Property Tax: Tax based on % of the assed value of the property in question Transaction Tax: Privilege of doing business in a state. Does not discriminate on interstate commerce

Where does congressional investigatory power end?

Congressional investigatory power is very broad, but it ends with questions that are not within the scope of anything congress could actually legislate.

Misc Defense: Consent

Consent of a Victim is generally NOT a defense, but MAY be available if it negates an element of the offense Consent is NEVER available for certain offenses (e.g. statutory rape) In order to for consent to apply it must be established that: 1) Consent was voluntarily and freely given 2) Party was legally capable of consenting; AND 3) No fraud was involved in obtaining consent

Defenses to Defamation-types

Consent, truth, or privilege

What should you do if you see an answer that says "right, not a privilege"?

Consider it wrong. The supreme court has rejected that test in due process considerations.

Government Action ("State Action) Requirement

Const. applies only to govt action (federal, state or local) * Private conduct doe into have to comply with the Const. subject to the exceptions below EXCEPTIONS: Const. will apply to private conduct where: 1) Exclusive Public Function--A private entity performs a task traditionally performed by govt (narrow exception) >> Arises only if a private entity exclusively operates a govt function (e.g. private prisons, elections, running a town) 2) Significant State Involvement (Entanglement)--Govt affirmatively authorizes or facilitates private conduct >> State must affirmatively approve or validate private conduct--permitting it alone is insufficient >> Examples of State Action: Court enforces a racially restrictive covenant; state provides books to private schools that racially discriminate; govt leases premises to restaurant that racially discriminates; private entity regulates interscholastic sports in state >> Examples of No State Action: Govt grants liquor license to racially discriminatory private club; private school receiving govt funds fires a teacher over speech; govt subsidy insufficient to finding state action; NCAA orders suspension of basketball coach at a state university Note: Congress may indirectly regulate private conduct though the Commerce Clause (if it affects private commerce) or through the 13th A (enabling Congress to pass legislation enforcing the 13th A ban on slavery). Only slavery can violate the 13th A

Use of Documents by Witness During Testimony: Recorded Recollection (Hearsay Exception)

Contents of a document a witness previously wrote or adopted is read into evidence. This requires that witness: (1) Once had personal knowledge of facts comprising the recorded recollection (2) Document was written or adopted by the witness (3) Witness wrote or adopted the document when its contents were fresh in the witness's memory (4) Witness's memory is insufficient to testify at trail as tot he document's contents (i.e. present recollection refreshed was ineffective); AND (5) Document was accurate at the time it was made

Standard Money Damages

Contract damages generally involve compensatory damages, which aim to put the non-breaching party in the place he would have been had the breach not occured

Void Contract

Contract never had any legal effect ex: contract for an illegal conduct

Class Action Settlement

Court must approve any settlement reached between class representatives and opposing party. Settlements must be fair, reasonable, and adequate. Court will seek feedback from absent class members in deciding whether to approve or reject settlement

Full Faith & Credit Clause

Courts in one state must give full faith & credit to judgments of courts in another state if: 1) The prior court had jurisdiction over the parties and subject matter 2) Judgment was on the merits >> E.g. Judgment not founded on procedural issues 3) Judgment was final

Levels of Scrutiny

Courts use 3 tests to analyze the constitutionality of govt acts under substantive due process and equal protection 1) Rational Basis--A law will be upheld if it rationally related to a legitimate govt purpose * Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law * A law will almost always be upheld under rational basis review unless it is completely irrational or arbitrary * BOP = Challenger of the law bears the burden of proof 2) Intermediate Scrutiny--A law will be upheld if it is substantially related to an important govt purpose * Govt goal must be important; courts look at the actual reason the law was enacted * BOP = Govt bears the burden of proof 3) Strict Scrutiny--A law will be upheld of it is necessary to achieve a compelling govt interest * Govt must show there are no less restrictive or burdensome means of achieving its goal * Courts look at the actual reason the law was enacted * BOP = Govt bears the burden of proof

Cross-Claim

Cross-claims are claims against a co-party, they must arise from the same T/O as the underlying action. A cross-claim is never compulsory, they may be asserted in the pending claim or a separate action. All cross-claims must have an independent basis for SMJ. Cross-claims will almost always have supplemental jx because they arise from the same T/O E.g. P sues D1 and D2; D1 may assert a cross-claim against D2

In personalty, what is the difference between possession and custody?

Custody is physical control, but possession includes an intent to assert a right.

Transferred Intent Doctrine

D acts with the intent to commit a given tort but: A: commits it against different person than intended; B: Commits a different tort than intended or C: both

Breach of Duty

D breaches his duty when his conduct falls short of the standard of care owed under the circumstances.

Scope of Consent- Definition

D can be held liable for conduct that exceeds the scope of P's valid consent (express or implied)

negligence: Assumption of risk

D can deny P's recovery by establishing that P assumed the risk of damage caused by D's act. Requirements: D must show: 1. P knew or should have know the risk (objective standard) 2. P voluntarily proceeded in the face of that risk. Note: defenses vary by state MBE questions usually note what defense applies: otherwise assume pure comparative negligence

Negligence: Comparative

D can establish that P's injuries are at least partially the result of P's own negligence. Court apportions fault between P and D and reduces P's recoverable damages accordingly Partial/modified comparative negligence- P can only recover damages if he was less than 50% at fault. Pure comparative negligence- P can recover damages even if he was more than 50% at fault

Implied consent-definition

D can reasonably infer P's consent based on custom or P's observable conduct. 1. often applies if P participates in an activity or goes to a place where minor torts are common (tackle football-implied consent to certain forms of battery). 2. Facts must indicate that based on P's objective conduct, D was reasonable in interpreting P's consent

If L advises trial court of a resulting conflict of interest before trial and court refuses to appoint separate counsel?

D entitled to reversal on minimal showing he/she may have been prejudiced

Product Liability: based on Representation

D may be liable if a product falls short of an affirmative representation made to buyer

Minimum Contacts

D must have sufficient minimum contacts with the forum state the inquiry focuses on (1) purposeful availment and (2) foreseeability Purposeful Availment--D must purposefully avail herself of the forum states' laws and protections (e.g. using roads, doing business instate, etc.) Foreseeability-- D must know or reasonably anticipate she could be held accountable for her activities in the forum state Circumstances that give rise to sufficient contacts: (1) D is domiciled in the forum state (2) D is present in the forum state when served with process (but not tricked into coming into the forum) (3) D consents to jx in the forum state Circumstances that MAY give rise to sufficient contacts: (1) Interactive sites will be more likely to give rise to minimum contacts, passive sites less likely. Interactive means two-way communication between user and operator (e.g. information exchanged for the purpose of soliciting business, purchases allowed). A passive site makes information available to interested viewers, but no business is transacted (2) Manufacturers may be held liable if they could reasonably expect consumers to purchase their products in the forum state. But mere awareness that component parts may reach forum as part of another product may be insufficient

Negligence:Duty of Care-Definition

D owes a duty of care to all foreseeable victims of his activities.

eggshell plaintiff rule-define

D takes P as he finds hm and is liable for the fu extent of P's injuries, regardless of whether they are forseeable.

Contribution to joint and several liability

D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid. Not applicable to intentional tort liability Contribution is usually imposed in proportio to relative fault.

Intentional Interference with Business Relations- privilege Defense:

D's conduct a may be privileged when it is a proper attempt to obtain business or protect his interests (eg. competing for P's customers)

Causation (intentional tort)

D's conduct must be a substantial factor in bringing about the resulting harm

Negligence:Duty of Care-Default

D's duty to behave like a reasonably prudent person (RPP) under the circumstances.

Recapture of chattels - limitations

D-owner must make a timely demand for return- exception: not required if making demand would be futile or dangerous. D-Owner may recapture from original wrongdoer or a 3rd person who knows the chattel was wrongfully obtained. Privilege to enter depends on who possesses property: Wrongdoer: reasonable time to reclaim chattel in a reasonable manner. Innocent person's property- 1st give notice required to landowner. If he refuses, D may enter at a reasonable time and peaceful manner.

Damages for UCC Contracts: Breach by buyer and buyer has goods

Damages = Contract price

Damages for UCC Contracts: Breach by buyer and seller has goods:

Damages = Either: (1) [contract price - market price at the time of delivery], or (2) [contract price - resale price plus provable lost profits].

Damages for UCC Contracts: Breach by seller and seller keeps or buyer returns goods:

Damages = The higher of either: (1) [FMV of goods at the time of breach - contract price], or (2) [buyer's cost of covering/replacing good - contract price]

Damages for UCC Contracts: Breach by seller and buyer keeps goods

Damages = [FMV of perfectly delivered goods - FMV of goods actually received]. Note, however, that if seller breaches by delivering non-conforming but superior goods, buyer is not responsible. Does not reduce buyers damages.

Trespass to Land- damages

Damages not required- compare to trespass to chattel and conversion

Defamation: Damages Consideration- depend upon

Damages, depending o whether the defamatory statement constitutes libel, slander or slander per se

What is the easiest way to convey land to the city as a park?

Dedicate it on a subdivision map or plat and the city merely approves it.

Product Liability: Strict Liability- defective product

Defect must make product unreasonably dangerous. Product is unaltered since leaving D's control P used the product in a foreseeable manner. (misuse of the product can be foreseeable) who can sue- foreseeable users or bystanders. (buyers, guests, family)

Causation Requirement

Defendant's conduct must be both the cause-in-fact and the proximate cause of the crime committed. Cause-in-fact: "But for" Defendant's conduct, the result would not have occurred. For homicide and manslaughter, any act by Defendant that hastens Victim's death is a cause-in-fact, even if death is already inevitable Proximate Cause: The actual result is the natural and probable consequence of Defendant's conduct, even if it did not occur exactly as expected. *Superseding factors breach the chain of causation. *Intervening acts must be entirely unforeseeable to shield the Defendant from liability (e.g. Victim's refusal of medical treatment, 3P medical negligence, both are foreseeable and Defendant is liable)

Concurrence Requirement

Defendant's criminal act must occur concurrently with the requisite mens rea for the crime (i.e. mens rea and acts reus must exist simultaneously) E.g. Defendant plans on murdering Victim at her home, Defendant is not guilty of murder if he accidentally runs over Victim with his car before reaching her house

Justification Defense: Defense of Dwelling or Other Property

Defense of Dwelling: (1) NDF is allowed to prevent or terminate an unlawful entry to attack on one's dwelling (2) DF MAY be used if the person reasonably believes: a) Force is necessary to prevent attack on oneself or others by a person who made an attempted violent entry; OR b) Force is necessary to prevent entry by a person who intends to commit a felony in the dwelling Defense of Property (Non-Dwelling): (1) DF is NOT allowed (2) NDF MAY be used if reasonably necessary to defend against unlawful interference with possessions or trespass on property (3) Need to use force MUST reasonably appear imminent i.e. force is not permitted if request to desist is sufficient Recovery of Property: Force may be used to regain property wrongfully taken, UNLESS one is in immediate pursuit of the wrongful taker E.g. D steals A's purse; A cano only use reasonable force to recover purse if she is immediately pursuing D

Product Liability: Implied Warranties-Defenses

Defenses: assumption of risk, contributory and comparative negligence.

Product Liability: based on Representation-defenses

Defenses: assumption of risk, contributory and comparative negligence.

What should you do if you see a motion to dismiss for improper venue

Deny it, because even if venue is improper, the case should just be transferred

Free Speech Framework

Determining applicable test/levels of scrutiny * ASK: Does the speech at issue fall within a lesser-protected category of speech (e.g. obscenity, symbolic speech, commercial speech, etc.)? >> YES--Apply the appropriate test for that category of lesser-protected speech >> NO--Identify whether the speech restriction is content- based or content-neutral to determine applicable scrutiny Content-BASED Speech--Content-based speech regulations restrict speech based on its subject matter and/or viewpoint (i.e. ideology of message) require SS analysis. >> E.g. Ordinance banning political protests--restricts speech on its subject matter (politics) >> E.g. City grants rally permit to liberal group but denies a rally permit for a conservative group--restricts speech based on viewpoint Content-NEUTRAL Speech--Content-netural regulations restrict the time, place, or manner of the delivery of speech, not its content. These restrictions are analyzed under the public forum doctrine. The applicable scrutiny test depends on whether the speech is in a public or non-public forum >> Public Forum = Intermediate-type scrutiny >> Non-Public Forum = Rational Basis-type scrutiny

Capacity Defense: Diminished Capacity

Diminished capacity is a defense based on Defendant's MENTAL DEFECT. It is available if the Defendant can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime Usually limited to Specific Intent Crimes

Miscellaneous Adverse Possession Rules - Statute of Limitations

Disabilities - (R) SOL does not begin to run if the true owner was under some disability when the adverse possession began. Future Interests - (R) SOL does not run against the future interest holders until the interest becomes possessory.

Discovery Overview (Rule 26)

Discovery involves a court-mandated process of acquiring and producing information form parties and non-party witnesses. It is conducted by parties, the court helps the process move forward but does not actively participate in exchange of information Initiating Discovery: Under Rule 26, parties must: (1) Meet and confer to discuss claims and develop proposed discovery plan (2) Initially disclose discoverable information, insurance, and damages information (3) Develop scheduling order with deadlines for completing discovery Conducting Discovery: Depositions, requests for production, interrogatories, requests for admission, etc. Followed by expert testimony and pretrial disclosures

Diversity Jx: Complete Diversity

Diversity jx requires complete diversity between the parties meaning no plaintiff and no defendant reside in the same forum state. Diversity is based on domicile at the commencement of the suit. A person may not relocate to defeat diversity. Citizen Domicile--A person's domicile is determined by their physical residence and their intent to remain (work, votes, taxes, bank account, driver's license) Corporations Domicile--A corporation has 2 domiciles: (1) their state of incorporation and (2) their principle place of business (PPB), where their corporate decisions are made, i.e. "never center" (usually corp. headquarters) Unincorporated Businesses (LLCs, LLPs, etc.)--Unincorporated businesses are citizens of all states which any partner or member is a citizen

What happens if you see a US citizen domiciled abroad

Do not let them be sued in federal court based on diversity at all.

Use of Documents by Witness During Testimony: Present Recollection Refreshed

Documents can be used to refresh a witness's memory during testimony. Anything can be used to refresh a witness's memory. A witness may not read aloud from a document, but can look at it briefly, then continue testimony unassisted Opponent may inspect and offer into evidence anything used to refresh a witness's memory

Permissive withdrawal + CA? (6)

Does not result in material harm 1. financial burden 2. acts against your judgment 3. illegal acts= fraud ABA noisy (urge client tp rectify, if refuses you can inform the defrauded party) CA not noisy (may not inform) 4. refusal to cooperate 5. repugnant or fundamental disagreement 6. must give reasonable notice

Notice Requirment

Due process requires that D must sufficiently notified of a pending lawsuit. Notice must be reasonably calculated under the circumstances to apprise the interested parties of the pendency of the action and afford them an opportunity to be heard. Traditional methods of notice such as personal delivery, registered mail, delivery to an appointed agent satisfy due process. P need not deliver notice personally; can be given by a court-appointed agent or agent hired by P If P know notice was not received by D (e.g. by mail), P cannot proceed if practical alternatives to giving notice exist

Fair Play & Substantial Justice

Due process requires that, assuming D has minimum contacts with the forum state, exercise of jx must not offend traditional notions of fair play & substantial justice. Courts look at 3 factors: (1) relatedness of contacts & claim, (2) convenience, (3) the state's interest, and (4) P's interest (1) Relatedness of Contacts & Claim-- Analyzes whether D's contacts with the forum state gave rise to the claim. This can happen in one of two ways, either specific jx or general jx. * General jx claims do not arise from D's contact with the forum state. Rather D must have systematic and continuous contacts with the forum state (e..g doing business, domiciled) * Specific jx claims arise from D's in-state contacts (2) Convenience-- Convenience analyzes whether jx in the forum would severely disadvantage D. The disadvantage to D must be so difficult that D is put at a sever disadvantage compared to P (3) State's Interest-- The forum state has an interest in protecting its residents from harms from out-of-staters (4) Plaintiff's Interest-- P may want to sue at home

Misc Defense: Duress

Duress is valid defense to a crime if Defendant committed the crime under reasonable belief that the crime was necessary to prevent death or serious bodily harm to Defendant or a member of Defendant's family E.g. Someone points a gun at D and threatens to kill him if he does not rob a bank EXCEPTION: Duress is NOT a defense to homicide crimes

Inchoate Offense: Co-Conspirator Liability & Withdrawal

Each conspirator is liable for co-conspirator's crimes that are (1) foreseeable, AND (2) committed in furtherance of the conspiracy Acquittal of Co-Conspirators: If a ALL alleged co-conspirators are acquitted, NO party can be convicted of the conspiracy. However, a person can be convicted of conspiracy even if his co-conspirator's have not been found guilty or charged Withdrawal: One CANNOT withdrawal from the conspiracy itself. One CAN withdraw from the co-conspirator's SUBSEQUENT crimes, including the target offense of the conspiracy Withdrawal is effective when the withdrawing party makes an AFFIRMATIVE ACT that notifies his co-conspirators he is withdrawing. Withdrawal must give enough TIME for co-conspirators to abandon plans for the target offense. The withdrawing party must attempt to NEUTRALIZE the effect of any assistance he provided to the original conspiracy

Electronic Surveillance: Wiretapping and Eavesdropping

Electronic surveillance (e.g. wiretapping and eavesdropping) that violates a reasonable expectation of privacy constitutes a search under the 4th A and requires a warrant A valid electronic surveillance warrant requires: 1) Probable cause that a specific crime is being or has been committed 2) Warrant must name suspects subject to surveillance 3) Warrant must describe with particularity the subject of conversations that can be surveilled 4) Surveillance must be limited to short periods of time 5) Surveillance must terminate when desired information is obtained and must be turned over to the court NOTE: All speakers assume the risk that the person to whom they are speaking is wired and/or recording the conversation. Therefore, police do not need a warrant if they get someone to wear a wire and take to a suspect. A speaker who makes no attempt to keep a conversation private has no reasonable expectation or privacy Police DO need a warrant to tap the suspect's phone

Crimes Against Property: Embezzlement

Embezzlement is the fraudulent conversion another's personal property by one in LAWFUL possession Embezzlement requires: 1) Fraudulent conversion: Defendant uses another's property beyond the scope of or inconsistent with Defendant's possessor rights 2) By one in lawful possession: Defendant must have lawful possession at the time of conversion Special Issues Refuting Embezzlement: * Intent to Restore: If Defendant takes property with the intent to restore the exact property, NO embezzlement has occurred * Claim of Right: Like larceny, embezzlement will not arise of the misappropriate is made under a claim of right to the property i.e. Defendant believes the property belongs to him Distinguished from Larceny: Both involve obtaining property through misappropriation, but circumstances of the taking differ: >>Embezzlement: Conversion of property in Defendant's rightful possession >>Larceny: Taking property not in Defendant's possession

Theft of company car after you lose your job is what?

Embezzlement, not larceny, because you had possession!

Vicarious Liability-Independent Contractors

Employers are generally not liable for torts committed by independent contractors except for acts that are inherently dangerous or duties that are nondelegable

Misc Defense: Entrapment

Entrapment is an available defense to criminal liability if a law enforcement agent has induced Defendant to commit a crime. To be successful, Defendant must prove: 1) The criminal design (idea or plan for the crime) originated with LAW ENFORCEMENT; AND 2) That Defendant was not otherwise PREDISPOSED to commit the crime prior to his contact with law enforcement Law enforcement providing opportunity for a person to commit a crime is not, by itself entrapment. E.g. Undercover officer buying drugs from dealer; officer merely provided opportunity for Defendant to make a sale NOTE: A very narrow defense; rarely effective because it is negated by any predisposition on Defendant's part. Unlikely, correct MBE answer

If you see a state statute discriminating against national aliens, what do you invoke?

Equal protection clause.

When you have at-large voter districts set up in a way that appears to facilitate past discrimination, is that unconstitutional? If so, what is that like 13th amendment, equal protection clause, or due process clause?

Equal protection.

Equitable conversion and risk of loss in land sale contracts

Equitable Conversion - (R) During escrow, the buyer owns the real property, but the seller owns personal property, therefore the seller holds legal title in the trust for buyer. Death of a party - (R) If the buyer or seller dies before closing, right to the contract pass according to interests held: seller's interest passes as personal property (sue for proceeds), and the buyer's interest pass as real property (sue for specific performance). Risk of Loss - (R) If property is destroyed before closing through no fault of the parties, buyer bears the risk of loss. However, parties can contract differently. Further, the seller must credit any insurance proceeds from loss against the purchase price.

Negligence: Breach of Duty: Actual Cause

Establish a casual connection between the alleged breach of duty and the resulting injury. the "But for" test- but for D's alleged breach of duty, P's injury would not have occurred.

negligence: Proximate cause

Establishes that it is fair under the law to hold D responsible for P's injuries. Foreseeable, direct or indirect causes or intervening causes.

Authentication

Every piece of PHYSICAL evidence must be authenticated, i.e., the proponent must show that the evidence is what he claims it is. Authentication may be proved by any means, this is a low burden, authentication must only be sufficient to sustain the findings. Writings that contain identifying information are self-authenticating evidence, they do not need separate authentication. Examples include: (1) deeds, (2) notarized documents, and (3) newspapers. Authentications Issues: (1) Ancient documents are automatically authenticated if: a) 20 or more years old b) Does not present any irregularities on its fact c) Found in a place of natural custody (2) Photos must be authenticate by personal knowledge. Does the fact testified to equal the fact perceived? (2) Non-unique items, items facially indistinguishable from others of its kind (e.g. bag of white powder, generic syringe), must be authenticated through a "chain of custody." The proponent must establish that the proffered evidence is the same item it is claimed to be (will be admissible absent large breaks in chain)

Character Evidence in CIVIL Cases

Evidence of a person's character is generally INADMISSIBLE to prove they acted in conformity with that character on a given occasion. In civil cases, character evidence MAY be used when: (1) character is at issue or (2) prior acts of sexual assault or child molestation in cases for similar claims. (1) Character At Issue: Character evidence is ADMISSIBLE if character is an essential element of a claim or defense. Character can be proved through opinion, reputation or specific instances of conduct. E.g. Defamation, Child Custody Disputes (2) Prior Acts of Sexual Assault or Child Molestation in cases for similar claims: In cases arising from sexual assault or child molestation, defendant's prior acts of sexual assault or molestation are ADMISSIBLE to prove defendant's conduct in the present case. Note: This also applies in criminal cases. Plaintiff must disclose intent to offer this evidence at least 15 days before trial.

Character Evidence in CRIMINAL Cases

Evidence of a person's character is generally INADMISSIBLE to prove they acted in conformity with that character on a given occasion. In criminal cases, Defendant may introduce evidence of her character, which the prosecution may rebut; with limited exceptions. Prosecution may not first introduce evidence of defendant's character. The DEFENSE may introduce evidence of pertinent good character. The character must be pertinent to the charged crime (e.g. D's reputation for peacefulness is irrelevant to a forgery charge). Defendant may call a witness to testify to defendant's good character based on reputation or opinion (but not specific instances) Once Defendant "opens the door" the Prosecution may rebut by: (1) Cross examining defendant's witness (including knowledge of specific instances of defendant's misconduct or prior arrests; OR (2) Calling witnesses to testify to defendant's bad character, limited to defendant's character for the trait in question The Prosecution may not initiate introduction of character evidence about Defendant (i.e. cannot "open the door"), EXCEPT: (1) In cases of sexual assault/child molestation the Prosecution can offer evidence of Defendant's other acts of sexual assault or child molestation; OR (2) If Defendant offers evidence of Victim's character, Prosecution can offer evidence that Defendant has the same character trait. **Direct: Reputation and opinion evidence is admissible; evidence of specific instances is inadmissible **Cross: Reputation, opinon, and specific instances are admissible CA: Prior acts of domestic violence are admissible.

Character Evidence in CRIMINAL Cases

Evidence of a person's character is generally INADMISSIBLE to prove they acted in conformity with that character on a given occasion. In criminal cases, Defendant may introduce evidence of her character, which the prosecution may rebut; with limited exceptions. Prosecution may not first introduce evidence of defendant's character. The DEFENSE may introduce evidence of pertinent good character. The character must be pertinent to the charged crime (e.g. D's reputation for peacefulness is irrelevant to a forgery charge). Defendant may call a witness to testify to defendant's good character based on reputation or opinion (but not specific instances) Once Defendant "opens the door" the Prosecution may rebut by: (1) Cross examining defendant's witness (including knowledge of specific instances of defendant's misconduct or prior arrests; OR (2) Calling witnesses to testify to defendant's bad character, limited to defendant's character for the trait in question The Prosecution may not initiate introduction of character evidence about Defendant (i.e. cannot "open the door"), EXCEPT: (1) In cases of sexual assault/child molestation the Prosecution can offer evidence of Defendant's other acts of sexual assault or child molestation; OR (2) If Defendant offers evidence of Victim's character, Prosecution can offer evidence that Defendant has the same character trait. **Direct: Reputation and opinion evidence is admissible; evidence of specific instances is inadmissible **Cross: Reputation, opinon, and specific instances are admissible, but no extrinsic evidence CA: Prior acts of domestic violence are admissible.

Impeachment by Bias or Interest

Evidence of a witness's bias or interest in the outcome of a suit may be used to impeach a witness (because it tends to show motive to lie). Bias or interest may be established through cross-exam or extrinsic evidence. The witness must be questioned on cross-exam regarding the facts that show bias or interest so that the witness has an opportunity to explain or deny.

Liability Insurance

Evidence of liability insurance is NOT admissible to prove fault (negligence) or a party's ability to pay damages. Evidence of insurance IS admissible to prove anything else (e.g. ownership, control, bias, etc.)

Subsequent Remedial Measures or Repairs

Evidence of repairs or other remedial measures taken after an injury is INADMISSIBLE to prove fault (negligence), defect, or inadequate warning. Remedial measures evidence is ADMISSIBLE to rebut a defense that there was not feasible precaution. CA: Evidence of subsequent remedial measures is admissible to prove design defect in a strict products liability action

Subsequent Remedial Measures or Repairs

Evidence of repairs or other remedial measures taken after an injury is INADMISSIBLE to prove fault (negligence), defect, or inadequate warning. Remedial measures evidence is ADMISSIBLE to rebut a defense that there was not feasible precaution. CA: In CA, evidence of subsequent remedial measures is admissible to prove design defect in a strict products liability action

Similar Occurrences

Evidence of similar events occurring outside the present litigation is usually INADMISSIBLE, but can be relevant if used for non-propensity purposes. Similar occurrences may be admissible to prove: (1) Causation (2) Prior Accidents Demonstrating: (a) A pattern of fraudulent claims, or (b) Pre-existing conditions (3) Intent or Absence of Mistake (4) To rebut a defense of impossibility **Any time D says something is impossible opens door to rebut defense** (5) Value (e.g. similar transactions can establish value) (6) Industry Custom (to prove standard of care in negligence case)

Executive Privilege

Executive privilege protects against disclosure of presidential papers and conversations * Important govt interests in criminal cases can override the privilege (e.g. Watergate--presidential documents and phone logs were disclosed for evidentiary purposes, which overrode the privilege)

Expert Opinion Testimony

Experts may provide opinions on facts or issues in the case. Experts may render an opinion on any ultimate legal issues, EXCEPT opinions on defendant's mental state in a CRIMINAL trial if it is an element of a crime or defense. Expert opinion is admissible if: (1) It is HELPFUL. The expert's opinion must be helpful to the trier of fact (i.e. expert uses specialized knowledge to reach conclusions an average juror would not reach alone) (2) The expert is QUALIFIED. Expert must possess special knowledge, skill, experience, training or education (specialized knowledge does not need to come from school) (3) It is REASONABLY CERTAIN. Expert must believe in her opinion to a reasonable degree of certainty, can admit some doubt (4) There is PROPER FACTUAL BASIS for the opinion. The opinion must be based on facts. Expert may base opinion on (a) admitted evidence, (b) personal knowledge, or (c) inadmissible evidence properly relied upon (e.g. data, other testimony experience) (5) The opinion is based on RELIABLE PRINCIPALS REASONABLY RELIED ON. If expert opinion is based on science, court also considers whether evidence is: i. Peer tested and capable of retesting ii. Published iii. Has low error rate iv. Reasonably accepted in the field of study CA: Reliability of scientific opinions is determined by one factor, the opinion must be based on principles GENERALLY accepted by experts in the field

Crimes Against Property: Extortion

Extortion is obtaining property through threats of FUTUER harm or exposing information

Intentional Infliction of Emotional Distress

Extreme and outrageous conduct by D causing P's severe emotional distress.

Collateral Matters & Extrinsic Evidence

Extrinsic evidence MAY NOT be used to impeach a witness on a collateral matters. Extrinsic evidence is any evidence other than the witness's testimony at the current proceeding. This includes evidence of prior inconsistent statements made out of court. A collateral matter is a fact NOT material to issues in the case. It says nothing about the witness's credibility, only used to contradict a witness. e.g. W1 testifies he was headed to store when he say D commit murder, defense cannot call W2 to testify that W1 was really headed to see his mistress--this is collateral to the issue Ask: Would it be material to the given issue if not for the witness's contrary assertion? If not, it is likely collateral Note: Extrinsic evidence is ADMISSIBLE on non-collateral (i.e. material) matters. Additionally, extrinsic evidence regarding collateral matters is only prohibits for impeachment purposes; it is admissible for other purposes (e.g. to show bias)

Timeliness of performance

Failure to perform by the time stated in the contract is not a material breach if performance is rendered within reasonable time after the stated time.

Crimes Against Person: False Imprisonment

False imprisonment is the unlawful confinement of a person without their consent. Consent cannot be obtained through coercion, threat or deception NOTE: False imprisonment can become kidnapping if the victim is moved and/or concealed

Crimes Against Property: False Pretenses

False pretenses is the obtaining of TITLE to another's property using false statements of past or existing fact, with intent to defraud False pretenses requires: 1) Obtaining Title: Obtaining ownership, NOT mere possession 2) By False Statements: Must be an intentional false statement 3) Of past or existing fact: Misrepresentation regarding a future event is NOT sufficient 4) Intent to Defraud: Victim must be deceived or act in reliance on the false statement in passing title to Defendant

Diversity Jx

Federal courts have SMJ over controversies between citizens of different states or a citizen of a state and a citizen of a different country and the amount in controversy exceeds $75,000 ($75,000.01)

Federal Question Jx

Federal courts have jx over claims arising out of the U.S. Constitution or the laws and treaties of the United States. Exclusive Federal Jx--Federal courts have exclusive jx over certain types of claims, which must be heard in federal court: 1) Bankruptcy 2) Patent and Copyright 3) Federal Antitrust Claims 4) Postal Matters

Alternative Dispute Resolution

Federal courts must have an ADR program. ADR generally refers to any means of settling disputes outside the courtroom, including arbitration and mediation

Subject Matter Jurisdiction (Overview)

Federal courts must have authority over the claim or controversy in question.Federal courts are courts of limited jx, meaning they can only hear certain types of cases. SMJ can NEVER be waived, it can be raised at any time. Note: Unlike state courts which have general jx and can hear any kind of case

Testimonial Privileges

Federal courts recognize several testimonial privileges. There are NO FRE privilege rules, federal courts have created and adopted these privileges. State privilege rules (which often vary) apply in federal cases based on diversity jx. Testimonial Privileges: (1) Attorney-Client (2) Doctor-Patient (3) Psychotherapist/Social Worker-Patient (4) Spousal (5) Material Communications (6) 5th A Privilege Against Self-Incrimination

Politcal Question Doctrine

Federal courts will not adjudicate certain constitutional issues that constitute political questions Political questions involve issues that: a) The Constitution commits to another brach of the govt (i.e. not the judiciary) OR b) Are incapable of judicial resolution or enforcement Four common political questions deemed non-justiciable: 1) Actions under the "republican form of government" clause int he Constitution 2) Challenges to the President's conduct of foreign policy 3) Challenges to impeachment and removal proceedings 4) Challenges to partisan gerrymandering (election districts) Non-political questions deemed justiciable: 1) Legislative apportionment 2) Production of presidential papers/communications

Fees + CA?

Fees must not be unreasonable CA- fees must not be unconscionable (may not shock the conscience, be fradulent/overreaching, or fail to disclose a material fact)

Crimes Against Person: Felony Murder

Felony murder is a killing that occurs during the attempt or commission of an enumerated felony. The intent necessary is to commit the underlying felony. Felonies allowing for felony murder include (1) inherently dangerous felonies and (2) statutorily enumerated felonies Limitations on Liability for Felony Murder: 1) Defendant must be guilty of the underlying felony >> Valid defense to the underlying felony are also defenses to felony murder 2) The underlying felony CANNOt be a killing itself 3) Victim's death must be a FORESEEABLE result of the felony 4) Victim's death must be cause before Defendant reaches a place of temporary safety 5) Defendant is NOT liable for the death of a co-felon killed by police or the original Victim

Justiciability

For a case to be heard in federal court, it must be justifiable, meaning a case or controversy must exist. To determine whether a case or controversy exists, the case must satisfy requirements for: 1) Standing 2) Ripeness 3) Mootness 4) Political Question Doctrine

Due Process: Plea Bargains

For a plea bargain to be valid: (1) Judge must determine plea is voluntarily and intelligently made (2) Judge must ensure the Defendant understands: a) The nature of the charge and its critical elements b) Maximum authorized penalty and any mandatory sentence c) That Defendant has aright to plead not guilty d) That Defendant is waiving his right to a jury trial Appellate Courts will NOT disturb a valid plea UNLESS: (1) Plea was made involuntarily (e.g. due to a misunderstanding) (2) The court that took the plea lacked jurisdiction (3) Defendant had ineffective assistance of counsel (4) The Prosecutor failed to honor the plea Contract Theory of Plea Bargaining * Pleas will be enforce against both parties, but the judge is not required to accept or adhere to the agreement * The Prosecutor CAN threaten Defendant with a more serous crime than he was initially charge with and even follow through on such threats if Defendant does not accept plea

No newsworthiness exception

For appropriation of name or likeness only

Mens Rea: General Intent

For general intent crimes, Defendant must be aware of his actions and any attendant circumstances. General intent may be inferred from the act itself. Most crimes are general intent crimes.

Mens Rea: Malice Crimes

For malice crimes, Defendant acts with reckless disregard or undertakes an obvious risk, from which a harmful result is expected. Malice crimes include arson and common law murder.

Mens Rea: Specific Intent Crimes

For specific intent crimes, Defendant must have a specific intent or objective to commit the given crime. Specific intent must always be proven, never inferred. Mistake of fact and voluntary intoxication are available defenses.

Foreclosure & Mortgagee rights to property

Foreclosure - (R) Upon default, mortgagee can satisfy debt through foreclosure by judicial action. Property is sold to satisfy the debt in whole or in part. Deficiency judgment exists if the debt exceeds sale proceeds, mortgagee can file suit against mortgagor for debt balance if proceeds exceed the debt balance, junior liens are paid in order of priority. Redemption in equity - (R) At any time prior to the foreclosure sale, mortgagor can redeem the property by paying the amount due. Some jurisdictions allow mortgagor, for a certain period, to buy back the property after foreclosure sale. Mortgagee possession - (R) Mortgagee's right to possession prior to foreclosure depends on the jurisdiction: Lien theory - no right to possess prior to foreclosure Title theory - right to posses at any time upon demand. Mortgagee can always take possession with mortgagor's consent or abandonment. Mortgagee in possession assumes the risk of accounting for rents, managing property, and tort liability to third parties.

Crimes Against Property: Forgery

Forgery is the creating or altering of a written document with purported legal significant to be false, with the intent to defraud Forgery requires: 1) Creating or Altering: Drafting, adding, or deleting from a document's contents 2) A Document with Purported Legal Significance: A document that carries legal value e.g. a check or contract, but not a painting 3) To be False: Modifying the document into something it is not; changing its legal significance, not just changing it to be inaccurate 4) With Intent to Defraud: Specific Intent Crime NOTE: Actually defrauding somebody is NOT required, the mere intent to defraud is sufficient

Freedom of Association: Membership & Disclosure Restrictions

Freedom of association issues arise when laws prohibit or punish group membership. Strict scrutiny applies. Laws criminalizing membership--Govt must prove that D: 1) Actively affiliated with a group involved with illegal activities 2) Had knowledge go the group's illegal activities 3) Acted with specific intent of furthering those activities Disclosure Requirements--Laws requiring disclosure of group membership must meet SS if disclosure would have a "chilling" effect on the association (i.e. if it would inhibit groups ability or willingness to associate)

Fundamental Rights & the Right to Privacy

Fundamental rights (FR) are treated under both the 5th A Substantive DP and 14th A EP * Substantive DP--Applies if right is denied to all * EP--Applies if right is denied to some but not others FR Overview: * Right to Privacy--An inferred right that encompasses several rights with varying levels of scrutiny >> Strict Scrutiny Review: 1) Right to Marry 2) Right to Procreate 3) Rights concerning Family and Children: a) Right to custody of one's children Note: A state can create irrefutable presumption that husband is the father of a child b) Right to keep family together (includes extended family) c) Right to control children's upbringing 4) Right to Contraceptives >> Separate or Unknown Levels of Review: 1) Right to Abortion 2) Right to Engage in Private, Consensual Homosexual Activity (unknown) 3) Right to Refuse Medical Treatment (unknown) * Right to Vote--Usually implicated under the EP clause * Right to Travel--Usually implicated under the EP clause

Gender & Non-Marital Children Classifications

Gender--IS + "exceedingly persuasive justification" Gender classifications receive IS (i.e. they must be substantially related to an important govt purpose). Additionally, courts often require an "exceedingly persuasive justification" for the classification Classifications discriminating against men are usually invalid. Some have passed IS, e.g. statutory rape laws applying only o men, all-male military draft Classifications benefitting women: 1) Classifications based on stereotypes are impermissible 2) Classifications designed to remedy past discrimination or differences in opportunity will likely be upheld Non-Marital Children--usually arises with intestacy statues Illegitimacy classifications requie IS fi the a law grants benefits to all marital children but dense benefits to some non-maritial children. Laws that deny benefits to all non-marital children while granting benefits to all marital children are unconstitutional on their face Receiving benefits only after a paternity test is considered constitutional

General Intent Crimes

General Intent Crimes include: 1. Battery 2. Rape 3. Kidnapping 4. False Imprisonment

Delegation

Generally, all duties may be delegated except those involving: (1) personal judgment and skill, (2) delegation changes the expectancy in a requirement or output contract, (3) a party has placed special trust in the delegator, or (4) a contract provision restricts delegation. Note, however, in order to delegate, the obligee must generally accept performance from delegee, and only duties may be delegated, not rights.

Revocation of acceptance of goods

Generally, buyer cannot later reject accepted goods unless: (1) the nonconformity substantially impairs the value of the goods (2) buyer is excusably ignorant of the grounds for revocation or reasonably relies on the sellers assurance of satisfaction (3) buyer revokes within a reasonable time after discovering non-conformity.

Fighting Words

Govt may punish speech if it it is likely to cause an immediate violent response against the speaker Note: It is virtually impossible for fighting words statute to be upheld; it will be overbroad, vague, or deemed content-based and fail under SS

Obscenity

Govt may regulate obscenity, which has been deemed a lesser-protected category of speech. Expression is obscene if: (Miller Test) 1) It appeals to the prurient interests (sexually stimulating); AND >> Average person standard--How would the average person, applying community standards, view the material as a whole? 2) It is patently offensive in its sexual portrayal; AND >> Material must offend community standards regarding the portrayal of sexual matters >> Any law prohibiting obscene material must specify what is deemed patently offensive 3) Taken as a whole the material lacks serious literary, artistic, political or scientific value (ALPS) >> Determined based on national standard

Speech in Limited/Designated Public Forums

Govt properties that the govt open for speech, but can close anytime (e.g. public school facilities for girl scout meetings) are limited/designated public forums. The same rules apply as for public forum restrictions, but only apply when the govt property is open for speech To be upheld, the restriction must: 1) Be content-NEUTRAL (i.e. only regulates time, place or manner); AND 2) Must be narrowly tailored to serve an important govt purpose; AND 3) Leave open adequate, alternative channels of communication (Does not need to be the least-restrictive alternative) * When closed for speech or restricted to certain types of speech, analyze regulations the same as for non-public forums

Speech in Non-Public Forums

Govt property that can be closed to speech (e.g. military bases, airports, advertising on city buses, sidewalks on post office property, areas outside prisons & jails) are non-public forums. The govt can regulate speech if the regulation is: 1) Reasonably related to some legitimate purpose, AND 2) Viewpoint Neutral >> Note: Content-neutrality not requires; govt can allow speech on some subjects but not others, yet if it opens speech to a subject it cannot limit speech to only one view

Administrative Searches

Govt. agencies MAY conduct routine searches or inspections of highly-regulated business or industries. e.g. building code inspection, inspections for food safety, airline passenger searches A warrant is required for inspections of private residences or commercial buildings. The warrant requires less particularity than standard warrants. A general and neutral enforcement plan of the searches will suffice to validate the warrant

Valid Search or Seizure

Govt. searches and seizures of evidence must be reasonable under the 4th A, which requires a valid search warrant unless one of the 6 exceptions applies. In determining the reasonableness of a search or seizure: 1) Is there govt. conduct constituting a search or seizure? >> 4th A only applies to govt. conduct (direct or authorized); does not protect against private conduct 2) Does the Defendant have Standing? Defendant must have a reasonable expectation of privacy in the thing or placed being searched 3) Is there a valid search warrant? 4) If there is NO valid search warrant, was there a valid exception to the search warrant requirement? a. Search Incident to Arrest b. Plain View Search c. Automobile Search d. Valid Consent to Search e. Exigent Circumstances f. Stop & Frisk

Grand Jury Proceedings

Grand juries are required in federal court under the 5th A and are used to determine whether there is sufficient probable cause to bring charges against a suspect. Prosecutors present their cases to the grand jury, which vote to issue an indictment if they find probable cause Grand Jury Proceedings * Conducted in PRIVATE * Suspect has NO right to confront witnesses or attend proceedings * Witnesses are not entitled to Miranda warnings * Witnesses may not challenge a subpoena, but they may refuse to testify under the 5th A * Exclusionary rule does NOT apply i.e. an indictment can be based on evidence that would be inadmissible at trial

How do you revoke a Gratuitous assignment?

Gratuitous assignments may be revoked or terminated by: (1) death or bankruptcy of assignor, (2) notice of revocation by assignor, (3) taking of performance by assignor, or (4) later assignment to another.

Water Rights in Groundwater & Surface Water

Groundwater - (R) Water beneath the surface not confined to a known channel. Surface owner is entitled to make reasonable use of groundwater, but mot not be wasteful (MAJORITY) Surface water - (R) Water from rain, springs, or other runoff that has not yet reached a natural watercourse, landowners can generally use surface water as they please, but may be liable for interrupting its flow. Liability depends on which theory applies: (1) natural flow theory - owners cannot unreasonably alter natural drainage, (2) common enemy theory - owners can do anything to change drainage or combat flow unless it causes unnecessary damage to others' land, or (3) reasonable use theory - utility of use is balanced against the gravity of harm from that use.

If you see any jury instruction that requires defendant to disprove an element of a crime, what should you do?

Have the judgment reversed, because that violates due process.

HEARSAY EXCEPTIONS

Hearsay EXCEPTIONS are deemed hearsay, but still admissible. Declarant UNAVAILABILITY Required: 1) Former Testimony Exception 2) Statements Against Interest 3) Dying Declarations 4) Statements of Personal or Family History 5) Statements Offered Against Party Procuring Declarant's Unavailability Declarant Unavailability Immaterial: 1) Present State of Mind 2) Excited Utterance 3) Present Sense Impression 4) Physical Condition (for medical diagnosis or treatment) 5) Past Recollection Recorded 6) Business Records 7) Public Records or Reports 8) Judgments and Prior Convictions 9) Ancient Documents 10) Documents Affecting Property Interests 11) Learned Treatises 12) Family Records 13) Market Reports

Hearsay Exemptions

Hearsay EXEMPTIONS are deemed "non-hearsay" and thus admissible. There are 4 exemptions: 1) Admission--Out-of-court statements by a party are admissible if offered against that party a. Judicial Admissions: Made in pleading or testimony b. Adoptive Admissions: Acquiescence in another's statement * Silence CAN be an admission if: (1) Party heard, understood, and was capable of responding to a statement, AND (2) A reasonable person in the party's position would have responded c. Vicarious Admissions: Made by agent or employee d. Co-Consiprator Admissions: Co-conspirator's statements are admissible against D if made in furtherance of the conspiracy 2) Prior Inconsistent Statement Given Under Oath 3) Prior Consistent Statement--If offered to rebut a charge of fabrication, improper bias, or improper motive 4) Prior Statements of Identification--E.g. "the red Honda just hit and fled the scene!"

Hearsay

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, it is generally inadmissible, subject to exceptions or exemptions. A statment is an oral or written assertion, or nonverbal conduct intended as an assertion. Non-human assertions are NOT statements (e.g. test results, radar gun reading, dog barking) Note: A witness's OWN previous out-of-court statement can be hearsay, thus an answer that a statement is "not hearsay because it's W's own statement" is incorrect CA: Hearsay rules are exempt from Prop 8. Thus, in a criminal case, hearsay is inadmissible unless it falls within exception.

Statement Concerning Declarant's Then-Existing State of Mind or Physical Condition (Circumstantial SOM)

Hearsay statements are admissible if they concern a declarant's state of mind, emotion, sensation, or physical condition existing at the time the statement was made. A statement of then-existing STATE OF MIND is usually offered to show a declarant's intent at the same time the statement was made or as circumstantial evidence than an event was carried out. A statement of then-existing CONDITION is usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement. Note: Statements of memory or belief are INADMISSIBLE because they do not reflect on a then-existing condition Statements of INTENT may be admissible as circumstantial evidence the an act was committed at a later time.

Business Records Exception

Hearsay statements in the form of business records are admissible if they are: (1) A record or transaction made or record by a business (e.g. transactions, reports, patient records) (2) Made in the regular course of business (3) Made at or near the time of the matters described (4) Mad bey an employee with personal knowledge of the facts recorded; AND (5) Authenticated or certified in writing The court may exclude an otherwise qualifying business record if the source of the information or other circumstances indicate a lack of trustworthiness. Police Reports: In CRIMINAL cases, police reports or other criminal investigative reports are INADMISSIBLE as business records or public records Hearsay within Hearsay: Business records often involve multiple layers of hearsay. Every level of hearsay must fall into some exception or exemption to be admissible.

Business Records Exception

Hearsay statements in the form of business records are admissible if they are: (1) A record or transaction made or record by a business (e.g. transactions, reports, patient records) (2) Made in the regular course of business (3) Made at or near the time of the matters described (4) Made by an employee with personal knowledge of the facts recorded; AND (5) Authenticated or certified in writing The court may exclude an otherwise qualifying business record if the source of the information or other circumstances indicate a lack of trustworthiness. Police Reports: In CRIMINAL cases, police reports or other criminal investigative reports are INADMISSIBLE as business records or public records Hearsay within Hearsay: Business records often involve multiple layers of hearsay. Every level of hearsay must fall into some exception or exemption to be admissible.

Statement of Physical Condition for Diagnosis or Treatment

Hearsay statements made to medical personnel for the purpose of diagnosis or treatment may be admissible. The statement must (1) be made to a medical personnel (anyone involved in treatment or diagnosis, not necessarily a doctor), and (2) the statement must be pertinent to assisting in the diagnosis or treatment of condition. *Includes statements of past conditions if statement is made for the purpose of diagnosis or treatment. Note: Related statements about an injury-causing event are usually INADMISSIBLE (e.g. statement by declarant to emergency room doctor that she was shot will be admissible, but the identity of the short will not, as it is not pertinent to treatment) CA: This exception only applies if declarant is a minor and the statement describes an act of child abuse or neglect

Impeachment

House can impeach the President, VP, federal judges, and federal officers for treason, bribery or high crimes and misdemeanors--requires majority vote Upon impeachment, trial in the Senate--requires 2/3 vote for removal from office

Specific performance (assumes valid contract) (5)?

IDFMD 1. inadequate legal remedy 2. definite and certain terms 3. feasibility of enforcement 4. mutuality 5. defenses

Factors Determining Risk of Loss

IN ORDER OF PRIORITY: (1) prior agreement of the parties (2) Breach- breaching party liable for any uninsured loss even if unrelated to the breach (3) Common Carrier: risk shifts to buyer once seller completes delivery obligations (4) Default: applies when 1-3 are N/A -if seller is a merchant ROL shifts to buyer once he takes possession of the goods. -non-merchant seller ROL shifts to buyer upon tendering felivery

Exception to privilege to enter to retrieve chattel

If D's chattel is on another's property through D's fault, D does not have a privilege to enter property.

Perjury?

If L knows C will give false statement 1. counsel not to testify 2. try to withdraw 3. tell judge, if withdrawal will not undo effect of false info

negligence: Proximate cause-direct causes

If P's injury is the direct consequence of D's negligent conduct, D is liable unless outcome is unusually bizarre or unpredictable.

Mutual Mistake of Fact

If both parties are mistaken about an underlying factual assumption at the time of contract formation, the contract is void if: 1. both parties are mistaken 2. mistake concerns a basic assumption of fact 3. mistake materially affects the agreed upon exchange 4. adversely affected party did not bear risk of the mistake Ex:parties find a rock and mistake it for a diamond

Defamation-Constitutional Considerations-elements If defamation involves a matter of public concern:

If defamation involves a matter of public concern, P must prove: 1. Falsity- P must prove statement was falso 2. Fault- P must prove D was at fault; standards differ for public vs. private figures. Standards: Public official/figure-actual malice standard (knowledge of the statement's falsity or reckless disregard to whether it was false) Private figure-negligence standard Note: for defamation involving private figures and private matters, there is no fault standard at common law.

Best Evidence Rule

If evidence is offered to prove the CONTENTS of WRITING, an original document must be used unless it is unavailable. A "writing" is any tangible collection of data (e.g. videos, documents, photos, books, computer drives, x-rays). Contents relates to a witness's knowledge obtained from a writing. Evidence sufficient to prove a writing's contents includes: (1) Originals (2) Duplicates: Are admissible unless there is a genuine question as the authenticity of the original itself. Must be from machine or carbon copy (3) Testimony regarding contents: Is admissible if the original is lost or destroyed, unless done so in bad faith by the proponent of the testimony. Voluminous Doctrine Exception: A voluminous series of documents may be summarized in court. The originals relied upon must be available for inspection. Completness Doctrine: If a party introduces PART of a writing or record into evidence, an adverse party may introduce evidence that should be fairly considered with it at that time. Often applies where parts of introduced evidence are omitted.

When will a federal court enjoin a municipal criminal proceeding?

If it is alleged that the prosecutor is only proceeding for the purpose of harassing the defendant.

How can a party enter a prior letter they sent to someone in evidence?

If it is evidence of a relevant matter in issue, simply offer it not for the contents of the letter, but just that a letter was sent.

Does the due process clause allow "summary takings" from general classes?

If otherwise constitutional, yes. No hearing is necessary for laws that cover general applicability. (Look to contracts clause)

Automobile Search Exception

If probable cause exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for. Automobile Search Exception requires: 1) Police to have probable cause to search the vehicle 2) Probable cause MUST arise before the search begins i.e. PC must arise based on something between the vehicle stop and the search Scope of Permissible Search: Police MAY search passengers and their belongings Packages & Containers in Vehicle: Police MAY open packages, containers, or luggage that might contain evidence relating to the reason they searched the vehicle. Police may also tow the vehicle and search such containers at a later time

Product Liability: Unavoidably unsafe products

If product cannot be made safe for its ordinary use (chain saws, fire arms) a manufacture must give: Proper instructions for use Adequate warnings of known dangers. D not liable for risks that were unforeseeable at the time the product was marketed

What should you watch out for if you see a rescuer who violates a statute and is negligent per-se?

If that breaking of the statute was reasonable (like breaking the speed limit to get someone to the hospital, but then getting in an accident because of it). This will negate the effect of negligence per se.

When can a buyer cancel the entire installment contract based on a nonconforming installment?

If that installment substantially impairs the value of the entire contract.

If you see a case filed in state court and an in-state defendant files for removal, what should you do?

If the action is based on federal question, let it go to federal court. if it's based on diversity, deny removal.

What should you be careful of if you see an obvious eggshell plaintiff question

If the defendant was even negligent at all in the first place. If not, you don't even go far enough into the analysis to address how the plaintiff was a weird weakling who couldn't handle the gentle vibrations of a railcar.

When can you bolster a defendant's character without being attacked on that trait first?

If the information is being offered for any valid reason other than bolstering.

Forum Non Conveniens

If there is a far more appropriate court in which a case should be heard (e.g. separate judicial system, foreign country, etc.) the court in which the case was filed may decline to exercise its jx. The court will either (1) stay the proceeding or (2) dismiss the case. The decision is based on the same public and private factors as for transfer of venue (i.e. convenience, applicable law, etc.)

When would a junior creditor pay off someone's bills rather than exercise their right of redemption?

If they're acting before foreclosure happens.

Third Party Beneficiaries

If two parties contract with some intent of benefiting a third party, that third party is a third party beneficiary (TPB).

Impeachment Approach and Overview

Impeachment casts an adverse reflection on the veracity of a witness's testimony. Any party may impeach any witness. Methods of Impeachment: (1) Contradiction (2) Prior Inconsistent Statement (PIS) (3) Bias or Interest (4) Sensory Deficiencies (e.g. W's senses were incapable of producing the perceptions testified to) (5) Reputation and/or Opinion for Untruthfulness. Admissible to impeach W's veracity by use of extrinsic evidence (6) Prior Acts of Misconduct (7) Prior Criminal Convictions Evidence SUPPORTING a witness's credibility is INADMISSIBLE unless credibility has been attacked (i.e. W has been impeached). >> EXCEPTION: A witness's prior consistent statement is ADMISSIBLE if the statement was made before witness had a motive to fabricate

Product Liability: Implied Warranties

Implied in every sale of goods is a warranty of merchantability and warranty of fitness for a particular purpose.

Confrontation Clause

In CRIMINAL cases, an otherwise admissible hearsay statement offered against a Defendant may be excluded under the 6th Amendment Confrontation Clause. An hearsay statement offered against a Defendant will be excluded if: (1) The declarant is currently UNAVAILABLE (2) Defendant had no prior opportunity to CROSS-EXAMINE the declarant about the statement at the time it was made; AND (3) The statement is TESTIMONIAL A testimonial statement is one that has GOVERNMENTAL INVOLVEMENT and the FORMALITY and SOLEMNITY of TESTIMONY AT TRIAL. If the declarant makes the statement under such circumstances that would lead a REASONABLE PERSON to believe that statement would be used at trial then the statement is testimonial. Testimonial statements include: (1) Prior statements made during court proceedings (2) Statements made in furtherance of a police investigation i.e. a statement aimed a producing evidence potentially relevant to a later prosecution EXCEPTION: Statements made to police during an ONGOING emergency are non-testimonial. They can be admitted without violating the Confrontation Clause.

The Erie Doctrine

In DIVERSITY cases, federal courts must apply state substantive law, but federal procedural law. Analysis: 1) Is there a valid federal law (e.g. Const., statute, federal rule) that is on point and directly conflicts with state law? * If YES, apply the federal law as long as it's valid 2) If no federal law is on point, the federal judge must apply state law if the issue is determined to be "substantive." Four issues are clearly "substantive": a) Elements of a claim or defense b) State Statute of Limitations c) Rules for Tolling Statue of Limitations d) Conflict (or choice) of law rules ** 3) If there is no federal law on point and the issue not one of the four "substantive" listed above, then the federal judge must determine whether the issue is "substantive." "Substantive" is analyzed under one of three tests: a) Outcome Determinative Test: Would applying or ignoring the state rule affect the outcome of the case? >> If yes, state law is substantive and should be applied b) Balance of Interests Test: Does either federal or state system have strong interest in having its rule applied? >> If one has clearly the stronger interest, apply that law c) Avoid Forum Shopping Test: If the federal court ignores state law on this issue, will it cause the parties to flock to federal court? >> If yes, state law is substantive and should be applied

Standard Damages - Incidental/Consequential

In addition to standard damage measures, incidental and consequential damages may be recovered.

6th amendment right to speedy trial?

In all criminal prosecutions, the accused shall enjoy the right to a speedy trial (attaches at time of arrest or formal charge)

Marital Communication Privilege

In civil and criminal cases martial communications are privileged in any later proceeding. Martial communications are CONFIDENTIAL COMMUNICATIONS made DURING marriage. The marital communication privilege applies even if spouses divorce after confidential communication was made. Either spouse may invoke the privilege. A spouse can lose the privilege if he breaks confidentiality (i.e. relays a material communication to a third party), the other spouse still retains the privilege. The exception does NOT apply: (1) In suits between spouses (2) In suits which one spouse is charged with a crime or tort against children; OR (3) In suits in which spouses are co-defendants

Specific Instances of Defendant's Bad Conduct (Prior Bad Acts)

In civil and criminal cases, specific instances of Defendant's bad conduct is INADMISSIBLE to prove character (i.e. action in conformity therewith), but ADMISSIBLE to prove anything else. Prior acts evidence is admissible to prove: MIMIC (1) Motive (2) Intent (3) Mistake (i.e. absence of mistake, knowledge) (4) Identity (extremely similar or unique prior act) (5) Common Plan or Scheme Note: Prior acts evidence is always subject to FRE 403 balancing (probative value vs. unfair prejudice)

Rape Shield: Limitation of Evidence of Victim's Character in Sexual Assault Cases To Prove Consent

In criminal and civil cases involving rape or other sexual assault, special rules exist limiting defense evidence of alleged Victim's character when offered to prove consent. In CIVIL cases, reputation, opinion, an specific instances are ADMISSIBLE to prove if probative value substantially outweighs unfair prejudice AND int he case of reputation evidence, Plaintiff puts her reputation at issue in some way Note: probative value vs. prejudice standard is different than FRE 403 (discretionary exclusion) In CRIMINAL cases, reputation and onion evidence of Victim's character is NEVER admissible. Specific instances of Victim's conduct are ONLY admissible to show: (1) A third party is the source of semen or injury, OR (2) Prior acts of consensual intercourse between Defendant and the alleged Victim Parties must disclose intent to offer evidence, describe its purpose, and notify the Victim 14 day before trial

Judgment as a Matter of Law (FRCP 50) aka JMOL or "directed verdict"

In extraordinary circumstances, a judge can take a case from the jury and render a decision on an issue. This can occur during trial (JMOL) or after jury verdict (RJMOL). A JMOL is a motion brought by either party because a case is submitted to a jury. Defendant can bring motion upon close of plaintiff's evidence or all evidence. Plaintiff can file at close of all evidence. Court views evidence in light most favorable to nonmoving party. A court can grant JMOL on an issue if a reasonable jury would not have a sufficient evidentiary basis to disagree as to the result (i.e. reasonable people could not disagree)

Rights of Third Party Beneficiaries

In order to enforce rights under a contract, a TPB's rights must vest. Vesting occurs when either: (1) the TPB assents to the promise in a manner requested by the parties to the contract, (2) the TPB brings suit to enforce the promise, or (3) the TPB materially changes positions in justifiable reliance on the promise.

Waiving Miranda Rights

In order to waive Miranda rights, waiver must be: 1) Knowing 2) Voluntary: Must be clear verbal waiver; AND 3) Intelligently Made Burden is on the prosecution to prove waiver was valid

In Personam Jurisdiction

In personam jx is jx over persons. A court may render judgment (money or injunction) against an individual personally. In personam jurisdiciton is based on a person's contacts with the forum state

In Rem Jurisdiction

In rem jx is jx over property or status, including ownership disputes. A court adjudicates rights of parties with respect to property. The property must be physically located in the forum state. This often involves estate issues, business proceedings, or property disputes Note: Judgment is binding as to the disposition of property rights or status, not as to parties personally

Dead Man Statute

In some jurisdictions (not the FRE) in a CIVIL suit against an estate, an interested party is incompetent to testify to a transaction or communication with the decedent.

Non-monetary remedies

In the event of a breach, certain non-monetary damages may be available if money damages are unavailable or inadequate such as specific performance or reclamation.

Incidental Damages

Incidental damages are damages that are incurred by the non-breaching party for commercially reasonable expenses such as cost of inspecting, returning, storing, reselling goods, etc. Under the UCC, both parties may recover incidental damages.

What is the difference between indemnity and contribution?

Indemnity covers the entire cost of the injury, and is available where a contract allows it, there is a special relationship that allows it, or the indemnity is sought down a supply chain in a products liability suit.

In a shipment K, what are the seller's delivery obligations if the goods are shipped by a common carrier?

Indicated by FOB-Seller's City Seller's delivery obligation is satisfied when seller: 1. delivers goods to a common carrier 2. makes reasonable arrangements for delivery 3. notifies the buyer Once complete risk of loss passes to the buyer

In a destination K, what are the seller's delivery obligations if the goods are shipped by a common carrier?

Indicated by anything not FOB-seller's city seller's delivery obligation is complete only when goods arrive at buyer's location

Battery - Causation

Indirect contact is sufficient-e.g. causing the force that gives rise to harmful or offensive contact. E.G. greasing a floor so P will slip

Capacity Defense: Infancy

Infancy is a defense to criminal liability for minors. Under age 7, there is NO criminal liability. For ages 7-14 years old there is a rebuttable presumption against criminal liability

What's the difference between apparent authority and inherent authority?

Inherent authority comes from a general understanding of the agency relationship between the agent and the principal. Apparent authority comes from what a third party thinks about the agency relationship.

Capacity Defense: Insanity

Insanity is a defense to ALL crimes, regardless of the intent requirement. Depending on the jurisdiction, 1 of 4 tests is used to determine whether Defendant was so mentally ill when he committed a crime that he should be entitled to acquittal. 1) M'Naghten: Defendant does not know right from wrong. Due to mental disease or defect AT THE TIME of the offense Defendant lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act 2) Irresistible Impulse: Defendant acted due to an irresistible impulse. Due to a mental illness Defendant was unable to CONTROL his actions or conform his conduct to the law 3) MPC: The Model Penal Code combines the M'Naghten & Irresistible Impulse tests. As a result of Defendant's mental disease, Defendant lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to requirements of the law 4) Durham: But for Defendant's mental illness, Defendant would not have acted. Defendant's conduct was the product of a mental illness

Misrepresentation-types

Intentional-fraud or deceit Negligent

Interpleader (Rule 22)

Interpleader allows a property holder (stakeholder) to initiate a suit to compel multiple claimants (defendants) to that property to litigate the dispute. Interpleader is allowed under both federal statute and Rule 22. Rule 22: Under Rule 22, complete diversity is required between the stakeholder and all other claimants and an amount in controversy must exceed $75K. Federal Statute: Under federal statute, one claimant must be diverse from at least one other claimant and the amount in controversy must exceed $500. Ex: Deceased had life insurance policy with DE Corp. having PPB in CA; claimants from NJ, NV, & CA all claim interest * Rule 22 = Improper because lack diversity * Federal Statute = Proper because claimants from different states

Interrogatories (Rule 33)

Interrogatories are written questions proposed by one party to an opposing party to be answered under oath . They are typically used to ask about the identity of documents and people who may have information related to claims and defenses. The maximum number of interrogatories that can be sent to a party is 25, unless there is a court order or stipulation for more. The deadline for responses is 30 days from service.

Intrusion upon seclusion & Disclosure-definition

Intrusion upon Seclusion & Disclosure are invasions of privacy torts along with appropriation and false light Intrusions upon P's private affairs in a manner that would be highly offensive to a reasonable person

Capacity Defense: Involuntary Intoxication

Involuntary intoxication arises when a Defendant was given an intoxicant without her knowledge or forced to consume an intoxicant. Involuntary intoxication is a defense to ALL crimes Involuntary intoxication is a form of Insanity, thus a defense to ALL crimes

Crimes Against Person: Involuntary Manslaughter

Involuntary manslaughter is a killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder Criminal Negligence: Arises if Defendant is grossly negligent E.g. Defendant is texting while driving and hits and kills a pedestrian in a crosswalk Commission of an Unlawful Act: The requisite unlawful act is any felony or misdemeanor not given rise to liability for felony murder NOTE: If MBE questions simply state "manslaughter" without distinguishing between voluntary and involuntary manslaughter, both types must be considered

Substantive Due Process

Involves the determination of whether govt has adequate reasons for depriving life, liberty or property * Encompasses both fundamental and non-fundamental rights Applicable levels of scrutiny * Non-Fundamental Rights--Rational Basis * Fundamental Rights--Strict Scrutiny Substantive DP vs. Equal Protection Clause (EP) * Similarities--Under both substantive DP and EP, a court reviews the substance of the law, not procedures * Differences >> Substantive DP--Usually involves laws affecting rights of all persons to engage in some conduct or activity >> EP--Usually involves laws treating certain people or classes of people differently than others, usually based on some trait

Logical Relevance

Irrelevant evidence is inadmissible. Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence. Relevancy is a yes or no question. CA: Evidence is logically relevant if it tends to prove or disprove a material fact in dispute

Issue Preclusion (Collateral Estoppel)

Issue preclusion prevents relitigation of particular issues of fact or law that have been actually litigated and previously determined. (Narrower than claim preclusion; does not preclude the whole claim necessarily, just the same issue) An issue will be precluded if: (1) There was a valid final judgment on the merits in the first case (2) Same Issue: The same issue was actually litigated and determined in the first case (3) Issue was Essential to the Judgment: Judgment would have been different in the first case absent litigation of this issue. Must be clear how the issue was decided by the original trier of fact (4) Asserted against ACTUAL party to previous case There are 2 views on who may assert issue preclusion: (1) Mutuality (traditional view): Only parties to prior litigation can assert issue preclusion (2) Non-mutuality (modern view): Issue preclusion may be asserted by those who were not parties in prior litigation

What happens if you have a condition precedent that is really just there for your own benefit?

It can be waived as a necessary condition for triggering duties under a contract.

What is the doctrine of equitable conversion?

It holds that in real estate contracts, upon signing, the buyer's interest is real estate, and the seller's interest in proceeds is personalty. This is important in determining risk of loss.

What is the difference between a joinder and a third party claim?

Joinder is when you bring someone in to put the blame on. A third party claim is asserted to obtain recoery for the third party's own liability to the plaintiff. (X hits Y. Y thinks it was Z. X cannot use third party claim against Z to bring him in, because X is not seeking to obtain recovery from Z for X's liability to Y, because that liability does not exist.)

What should you be on the lookout for if you see a question involving comparative contribution and traditional joint and several liability?

Joint and several liability either way will allow the plaintiff to recover the full amount from any defendant. The difference lies in what indemnification the defendants can get from one another.

Doctrine of changed circumstances? (3)

Judicial modification (cy pres doctrine allows courts to modify charitable trust 1. upon change of circumstances unanticipated by settlor 2. court can authorize deviation from administrative terms 3. if necessary to to acheive trust purpose, and does not deprive beneficiaries of their interest

Crimes Against Person: Kidnapping

Kidnapping is the unlawful confinement of a person that involves either: 1) Some movement of the victim; OR 2) Concealment of the victim in an unknown, hidden or secret location

Mental?

Know and understand: 1. nature and extent of bounty 2. natural objects of bounty 3. nature of disposition 4. no capcity if insane delusion (but for delusion...)

Non-judicial proceedings (legislative body of administrative agency)?

L shall disclose that apperance is to represent a C

Loyalty and exceptions?

L shall not represent a client if that representation involves a concurrent conflict of interest unless: 1. reasonable belief that he can be diligent and competent with both 2. does not involve a claim by one against the other in the same litigation 3. informed written consent 4. not prohibited by law

Reporting ABA? (3)

L who knows of violation that raises substantial question to L/J's 1. honesty 2. integrity 3. fitness

Legal services organization?

L's participation in organization myust not interfere with independent professional judgment in representation of clients

Crimes Against Property: Larceny by Trick

Larceny by trick is obtaining POSSESSION of another's personal property using false statements of past or existing fact

Crimes Against Property: Larceny

Larceny is the taking and carrying away of another's tangible personal property without consent and with intent to permanently dispossess the person of the property Larceny requires: 1) Taking: Obtaining control or possession. If Defendant and possession at the time of the taking, it is not larceny (but may give rise to embezzlement) 2) Carrying Away: The slightest movement will suffice 3) Without Consent: Against Victim's free will. The use of fraud or duress negates consent **Note: This element distinguishes larceny from larceny by trick** 4) Intent to Permanently Dispossess: Must exist during taking. Permanently deprive means for an unreasonable period of time. When one borrows property with the intent to return it, but later keeps it; larceny arises at the moment Defendant decides not to return the property Specific Intent Crime: It is NOT larceny if Defendant takes property as security for a for a debt owed or believing it belongs to Defendant Finding a Lost Item: Larceny can arise if the true owner is known or ascertainable and Defendant decides to keep the property (must be lost or misplaced; larceny cannot arise for abandoned property)

If you see a tort case with multiple tortfeasors all harming each other and no clear victim/offender situation, what should you be looking for?

Last clear chance. That should clear it up.

(warrant exceptions) automobile inventory search? (2)

Lawful if it meets two requirements: 1. must be part of routine standard police practices 2. not a pretext - no inventory seacrh for sole purpose of criminal investigation

Learned Treatises

Learned treatises arises with expert witness testimony only. Learned treatises are accepted authority in a given field. Experts can rely on learned treatises on direct exam or can be impeached with information from treatises on cross-exam. If admissible, statements from learned treatises may be read into evidence ONLY. CA: Learned treatises are only admissible to show matter so general notoriety or interest.

What happens if you see someone put a mortgage on a life estate?

Leave their remaindermen alone. Mortgage can't encumber the fee simple, only the life estate.

Defamation: Damages Consideration: Libel

Libel= a written defamatory statement. P does not have to prove special damages. . TV and Radio broadcasts are considered libel

Negligence: Duty of Care for owners & occupiers of land to Licensees & Invitees

Licensee- one who enters land with owner's permission for his own purpose or business ( not land owner's benefit) Invitee- one who enters land held open to the public or who enters with owner's permission to confer a commercial benefit (store patron, concertgoer, door to door salesperson)

Private Necessity- requirements

Limited Defense D invades P's property to protect an individual or small group Limited defense- P can recover actual damages, but not punitive or nominal damages, (unless D's act benefited P.)

Liquidated Damages

Liquidated damages are damages that are agreed-upon in the contract, which stipulate specific damages upon the occurrence of a breach. Liquidated damages are only valid if: (1) damages are difficult to project at time of contract formation, and (2) the provision is a reasonable estimate of actual damages.

How do you spot a quasi-contract?

Look For: 1) P has conferred a benefit to D 2) P reasonably expects to be paid 3) D knowingly accepted the benefit 4) D will be unjustly enriched if P is not compensated

What test is applied to Congressional regulation of noneconomic/noncommercial intrastate activities under the commerce clause (like guns in school zones)

Look for factual basis of effect on interstate commerce.

What should you look out for when you see a store manager or other agent of a business making recorded statements that they are under no business duty to make?

Look for vicarious admission on the part of the principal. Even if it's inadmissible against the agent, the employer could still be on the hook.

What should you look for if you see a necessary joinder vs complete diversity problem

Look to see if the underlying problem is a tort where joint and several liability could be applied to one of the defendants. If so, then the third party isn't actually necessary.

If you have a class action in federal court based on diversity, but a ton of the class members are living in the same state as defendant, what should you do?

Look to the named class representatives only. If they are in another state from the defendant, you're good to go.

If you see a husband and wife case pretending to be based on long arm statute diversity jurisdiction, what should you do?

Make sure it's not a domestic case. If it is, keep it in state court.

What should you look out for if a third party donee-beneficiary is told of his rights on a contract?

Make sure that the donee beneficiary was told by the promisee, not the delivering party. Otherwise their rights don't vest.

What should you look out for if you see prior witness testimony made under oath in another proceeding?

Make sure that the parties are the same! Otherwise, it's probably hearsay.

Malice Crimes

Malice Crimes include: 1. Common Law Murder (malice aforethought) 2. Arson

Mandatory Disclosures (Rule 26(a))

Mandatory disclosures involve information that parties must disclose, irrespective of requests from the opposing party. Initial disclosures must be made within 14 days of the parties Rule 26(f) meet & confer. Parties served or joined later must make initial disclosures within 30 days of being served or joined. Under Rule 26(a), parties must initially disclose: (1) Sources of discoverable information which includes identifying all persons, documents, and electronic sources likely to have discoverable information (2) A computation of damages claimed (3) Any insurance agreement that may be used to satisfy all or party of a judgment

Product Liability: Inadequate Warning

Manufacturer failed to adequately warn of a non-obvious risk associated with a product's use. Manufacturer also has a duty to warn of foreseeable dangers from misuse of the product. P must show that the product has risks that cannot be eliminated by redesign and consumers would not ordinarily notice.

Product Liability: Types of product defects:

Manufacturing, design, inadequate warning, unavoidably unsafe product

Scope of Discovery

Material is discoverable if: (1) It is non-privileged (2) Relevant to a claim (3) AND Proportional to the needs of the case. With regards to proportionality the following factors are considered: a) Amount in controversy b) Importance of issues at stake in the action c) Resources of the parties involved d) Importance of discovery in resolving issues at stake e) Whether the burden or expense of the proposed discovery outweighs its likely benefit Even if information would be inadmissible at trial, it may still be discoverable if it would is reasonably calculated to lead to admissible evidence

negligence: Proximate cause- forseeability

Measuring stick for proximate cause. D is liable for the forseeable outcome of his conduct

Mens Rea

Mens rea is the mental element required at the time the crime was committed. There are 4 common law mental states of a crime (1) specific intent crimes, (2) general intent crimes, (3) malice crimes, and (4) strict liability crimes.

Merchant duties and definition

Merchant = one who routinely deals in the product sold including any merchant in the stream of commerce (manufacturer rep, distributors, suppliers) Merchants have a strict duty to supply safe goods. Casual sellers, service providers are not merchants.

Product Liability: Implied Warranties-merchantability

Merchantability- seller warrants that goods are of average acceptable quality (without defects) and generally fit for their ordinary purpose

Merger

Merger concerns the relationship between either (a) an INCHOATE offense and its completed SUBSTANTIVE offense or (b) an offense and its LESSER included offense. When merger applies, the two offenses merge, prohibiting Defendant from being prosecuted for both crimes INCHOATE OFFENSES: Only applies to Solicitation and Attempt. Merger prevents Defendant from being convicted of both solicitation/attempt and the target offense. E.g. D completes a burglary after attempting it; D cannot be convicted of both attempt and burglary DOES NOT APPLY TO CONSPIRACY (i.e. D can be convicted of conspiracy to commit a given crime and the crime itself) LESSER INCLUDED OFFENSES: A Defendant CANNOT be convicted of a target crime and a lesser included offense. A lesser included offense consists of the same but not all elements of the greater crime. Note this is also barred by double jeopardy E.g. D's robbery accomplice kills V during robbery; D can be convicted of felony murder but not the lesser included offense of robbery NOTE: Crimes with DIFFERENT Victims never merge

Supreme Court Review--MBE ONLY

Methods of Supreme Court review: 1) Discretionary Review--Most cases get tot he USSC by writ of certiorari; the Court then decides whether to grant review 2) Mandatory Review--The Court must take appeals from 3-judge district court panels regardless of injunctive relief >> This bypasses the courts of appeal 3) Original & Exclusive Jurisdiction--Suits between states >> These suits must be filed in the SC Final Judgment Rule--SC only hears cases on review if there has been a final judgment of a lower federal court or a state's highest court State Court Decisions--SC CANNOT review a state court decision that rested on independent, adequate state law ground * i.e. If the state decision is based on federal and state law, the SC will not grant review unless the decision cannot stand on the state grounds alone

Miranda Rights

Miranda only applies when the accused is in (1) custody and (2) interrogated. Custody meaning the accused is not free to leave. Interrogation is statements by the police likely to elicit an incriminating response(s). Unsolicited statements are NOT protected >>NOTE: Routine questioning (e.g. during booking or a probation interview) is NOT considered interrogation >>Public Safety Exception: Police my interrogate suspects without giving Miranda warnings IF necessary for public safety (e.g. D has info about a boom that could go off in public) Miranda Warnings: Police must inform the accused that he has: 1) The right to remain silent 2) Anything said can be used against him 3) He has a right to the presence of an attorney, and 4) One will be appointed if he cannot afford one Substantial compliance in reading warnings is sufficient Failure to give warnings implicates 5th A, not 6th A

False light types

Mischaracterization of views or conduct. Matters of public concern. No newsworthiness exception

Crimes Against Person: Statutory Murder

Most jurisdictions classify murder crimes to various "degrees" by statute such as first-degree murder and second-degree murder First-Degree Murder: Arises if the killing is either (1) deliberate & premeditated or (2) felony murder 1) Deliberate & Premeditated: Defendant must have killed in a dispassionate manner and must have considered or reflected on his killing, even if only momentarily >> Specific Intent Crime: Voluntary Intoxication and Mistake of Fact are Valid defenses 2) Felony Murder: Killing during an enumerated felony (BARK: Burglary, Arson, Rape, Kidnapping) Second-Degree Murder: A homicide not arising to first-degree murder NOTE: If first-degree murder is not mentioned as a possibility in the MBE question or answer choices, assume the question involves second-degree murder, which is often he "default murder" on the MBE

Crimes Against Person: Homicide/Murder

Murder is the unlawful killing of another human with malice aforethought Malice aforethought arises when no mitigating facts reduce the killing to a lesser crime and Defendant commits the killing with one of the following mental states: 1) Intent to Kill 2) Intent to Inflict Great Bodily Injury 3) Depraved/Malignant Heart---A killing committed with reckless indifference to an unjustifiable risk of human life (i.e. Russian Roulette Hypo) 4) Felony Murder--A killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony. The intent required is the intent to commit the underlying felony. Statute dictates that a killing resulting from the crime constitutes felony murder Causation: Defendant's act must be both the actual and proximate cause of the Victim's death. Any act by Defendant hastening the Victim's death, even if already inevitable, is considered a cause

What terms are needed for real estate to be certain and definite?

Must include: 1. price and 2. identification of the land

Misc Defense: Necessity

Necessity is a valid defense if Defendant believed his conduct was reasonably necessary to avoid an imminent and greater injury to society. This is an objective test, Defendant's commission of the crime must be reasonably necessary; good faith alone is insufficient. EXCEPTIONS: Necessity is NOT available if: 1) The crime committed results in death of another, OR 2) Defendant caused the events giving rise to the necessity

Negligence basics

Negligence is analyzed under an objective standard by comparing D's action to a reasonable person under similar circumstances. Negligence law assesses D's behavior based on the common judgement of a collective people. Assess D's behavior given the circumstances under which she acted.

loyaly (no-self dealing) (4)

No 1. buying or selling trust assets to self 2. borrowing from trust funds 3. selling from one trust to another 4. corporate purchase-buying own stock

Product Liability: misrepresentation of fact

No assumption of risk. Contributory negligence available if misrepresentation was negligent, not intentional.

Mens Rea: Strict Liability Crimes

No means rea is required for strict liability crimes. No intent or awareness is required. Usually arises with administrative, regulatory or morality crimes and you don't see adverbs in the statute such as "knowingly," "willfully," or "intentionally."

P&I Article IV

No state may deny citizens of other states the privileges and immunities it accords its own citizens * Protects against denial of fundamental rights to non-state citizens (i.e. it is an anti-discrimination provision) Analysis--Article IV P&I problems arise if a state law discriminates against non-residents * Discriminatory state law--Invalid if it: 1) Relates to civil liberties or commercial activities 2) Is not necessary to achieve an important govt interest * I.e., State has no substantial justification for the discrimination or less restrictive means are available >> Examples: * Valid: In-state residents pay lower fees for public golf courses, hunting licenses, camping permits * Invalid: Income tax on non-residents only; limiting bar admission to state residents; different fees for commercial fishing licenses Non-discrimminatory state law--Valid * Note: Only applies to U.S. citizens!! 14th A P&I--Primarily applies to restrictions on rights to interstate travel, narrowly construed and unlikely to be a correct answer choice

Is an accord & satisfaction either an acceptance and breach?

No! It is a counteroffer. The recipient may accept it, or they have no further remedy against the sender.

Are Assignments for consideration revocable?

No, Assignments for consideration are irrevocable.

Can parties sue under the original agreement if there has been an accord?

No, an accord suspends the original agreement until satisfaction.

Is physical injury required in IIED?

No, and sometimes not even in NIED.

Is a right of first refusal an invalid restraint on alienation?

No, as long as it is reasonable and doesn't violate the RAP.

Can bias attacks on a witness be overcome by rehabilitation of reputation for truthfulness?

No, because they are not considered to be attacks on truthfulness.

Do gratuitous assignments need additional consideration to survive the preexisting duty rule

No, but a gratuitous assignment without consideration COULD be revoked.

In a unilateral contract is the offeree required to give notice upon starting performance?

No, but the offeree must notify the offeror within a reasonable time upon completion

Do material breach rules apply to sales of goods contracts?

No, material breach rules apply to sales of goods contracts

Is it acceptance if the buyer pays before he's had an opportunity to inspect?

No, payment without an opportunity to inspect is not acceptance

If buyer receives a nonconforming installment, can he reject the entire contract?

No, rejection is limited to the non-conforming installment not the entire contract

Do the Additional Terms automatically become part of a UCC contract?

No, they only become part of the contract if: 1. if both parties are merchants, 2. the additional terms do not materially change the offer and 3. the offeror does not object w/in a reasonable time

If you have to summarize a ton of information, do you need to enter every single document on which the information is base?

No, you can use a chart or other large graphic summarizing the information, but the information upon which it is based must be available to the opposing party prior to trial.

Defendant faces $500 fine for misdemeanor charge and is denied counsel. 6th amendment violated?

No.

If an adequate and independent state ground is a separate part of a state supreme court's decision, will the SCOTUS hear it?

No.

If someone buys a home subject to a mortgage but does not sign the mortgage assumption, are they liable for the debt still?

No.

If you bring in a spouse to testify as to what your habits are, do you need third party corroboration?

No.

Should you wait to be asked to provide names of witnesses/discoverable information they're talking about?

No. Go ahead and do it automatically.

Can you unilaterally withdraw a jury demand?

No. It requires consent of both parties.

Can civilian contractors working for the military be tried in court martials?

No. Not unless warfare has shut down the civilian courts.

In dying declaration situations, are statements about who the victim BELIEVES her killer to be admissible?

No. Opinions are no good.

If someone dies as a result of an assault with a deadly weapon (that was not intended to kill), can you apply felony murder rule?

No. The felony must be independent of the cause of death, like burglary.

Does the plaintiff have to accept remittitur?

No. The judge must give the option of accepting a remittitur or having a new trial.

At common law, if premises get destroyed at no fault of landlord or tenant, is the tenant free to leave?

No. The lease is still effective and tenant must still keep paying.

Is the statute of limitations tolled by a landowner's disability that manifests during a squatter's adverse possession?

No. The statute of limitations is only tolled if the disability happened at the inception of the adverse possession.

What happens if a tenant attempts to assign a tenancy at will to a third party? Is the third party in privity of estate with the landowner?

No. The tenancy is actually extinguished because a tenancy at will ends when either party wants it to. By assigning a lease, you are effectively saying you don't want to be the tenant anymore, so the tenancy ends.

If the cops lie and stall your lawyer in the lobby while interrogating you, and tell you you don't have to put anything in writing after you've been given miranda warnings, and you get confused and talk anyway, can that be suppressed?

No. You're talking now. You were Mirandized. Tough luck.

Issue Preclusion: Offensive & Defensive Use of Prior Judgment

Non-mutual issue preclusion may be used defensively or offensively Defensive Use of Prior Judgment-- Defendant seeks to prevent Plaintiff from relitigating an issue Plaintiff previously lost in prior suit against different party. Allowed if party against whom issue preclusion is asserted had a full chance to litigate the issue previously * E.g. D in second case can preclude P from relitigating an issue lost to another D in prior case Offensive Use of Prior Judgment-- Plaintiff seeks to prevent Defendant from relitigating issue that Defendant previously lost in prior suit against different party, rarely allowed. Court will only allow if deemed fair after balancing factors: (1) Whether party against whom prior judgment is asserted had full and fair opportunity to litigate (2) Whether party could foresee multiple suits being filed (3) Whether issue preclusion was unavailable in prior action (4) There are no inconsistent judgments on the record

Quasi Contract

Not a contract but an equitable remedy that arises when there is an unenforceable agreement but one side has realized a benefit

What is the primary overriding factor in determining agency?

Not consideration, not capacity, not intent, but whether the principal has the ability to control the agent.

Can a master of a craft delegate his contractual duties to his agents?

Not if they involve personal judgment or skill.

Does a beneficial easement visible or known to the buyer constitute an encumbrance?

Not in most courts.

Bystander claims for Emotional Distress-P closely related

Note: this element is not required if P shows that D had a design or purpose to cause P severe distress.

Objections to Form of Question or Testimony

Objections to form of question or testimony must be specific and made promptly; otherwise they are deemed waived. Testimonial objections include: (1) Unresponsive/Nonresponsive: A witness's testimony does not relate to or directly answer the question asked. Move to strike the response. Form of question objections include: (1) Calls for Narrative: Open-ended question allowing witness to respond in any way; attorney must ask specific questions (2) Leading: Question itself suggest the answer. Leading questions are improper on direct unless the witness is hostile or an adverse party. Leading questions are acceptable on cross-exam as long as they stay within the scope of direct (3) Assumes Facts not in Evidence: Question makes an assumption which as not been established on the record (4) Argumentative: Question does not actually ask anything, but is instead an assertion (5) Compound: Question that asks more than one question at at time; attorneys must ask questions individually (6) Beyond the Scope of Direct: Arises on cross-exam. Attorneys must confine their questions during cross-exam to the scope of direct. (i.e. cannot ask questions involving matters not discussed on direct)

Unilateral Contarct

Offer expressly requires performance as the only manner of acceptance ex: cash reward for finding lost dog

Immigration Searches

Officials may raid a business to determine citizenship status of its employees

Double Jeopardy Exceptions Permitting Re-Trial

Once jeopardy is attached retrial is allowed if: 1) Hung Jury 2) Mistrial due to Manifest Necessity: Occurs when Defendant's original trial is aborted for some reason (e.g. D too ill to continue) 3) Retrial after Successful Appeal by Defendant: Defendant can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict 4) Defendant Breaches a Plea Bargain Agreement 5) Separate Sovereigns: a. Defendant CAN be tried for the same crime in different STATES b. Defendant CAN be tried for the same crime in FEDERAL and STATE court

6th Amendment Right to Counsel

Once the 6th A right to counsel attaches, police may not elicit incriminating statements outside the presence of Defendant's counsel. The right attaches once charges have been FILED and applies to all subsequent stages of the proceeding The right is OFFENSE-SPECIFIC. Police CAN question Defendant about any other crime without violating Defendant's 6th A rights

Evidence of Victim's Character in Criminal Cases

Only a Defendant can "open the door" by introducing evidence of Victim's character to prove conduct. Once Defendant offers evidence of Victim's character, Prosecution may then rebut. In HOMICIDE cases, Defendant can offer evidence of the Victim's character for violence to show that the victim attacked first. Prosecution may then rebut by offering evidence of Victim's character for peacefulness **Direct: Reputation and opinion evidence is admissible; evidence of specific instances is inadmissible **Cross: Reputation, opinon, and specific instances are admissible

Evidence of Victim's Character in Criminal Cases

Only a Defendant can "open the door" by introducing evidence of Victim's character to prove conduct. Once Defendant offers evidence of Victim's character, Prosecution may then rebut. In HOMICIDE cases, Defendant can offer evidence of the Victim's character for violence to show that the victim attacked first. Prosecution may then rebut by offering evidence of Victim's character for peacefulness **Direct: Reputation and opinion evidence is admissible; evidence of specific instances is inadmissible **Cross: Reputation, opinon, and specific instances are admissible, but not extrinsic evidence

Can admissions made without Miranda warnings or presence of counsel be used at trial?

Only for impeachment.

If a witness who was not discovered before trial comes after the trial offering evidence that would change the outcome of the case, should you get a new trial?

Only if the witness could not have been discovered using reasonable diligence.

What war powers does the president have but not Congress?

Ordering troops around. They don't get to do that.

Organizational Standing

Organizations always have standing if the injury is to the organization itself. * Organizations may also sue on behalf of members if: a) Members would have standing to sue individually; b) Injury is related to the organizations purpose (Key Term: germane); and c) Neither claim nor relief requires participation of individual members

Valid Non-Hearsay Uses of Out-of-Court Statements

Out-of-court statements are NOT hearsay if they are offered to prove anything other than the truth of the matter they assert. Common non-hearsay uses of out-of-court statements include: 1) Statements of independent legal significance: Statements containing LEGALLY operative words, such that the statement itself is a legal factor in the case. Common with defamation, K, adverse possession cases E.g. In a K dispute, A testifies that B told him it was a "done deal" 2) Statements offered to show their effect on the listener E.g. Comparative negligee claim--Statement by third party wanting P of the injury-causing condition 3) Statements offered to show speaker's knowledge E.g. D charged with conspiracy, claims he didn't know about the crime; an out-of-court statement indicating D had been told about specifics of the crime will be admissible, indicating he knew it was being planned 4) Statements offered to show state of mind E.g. Statement by D before committing a crime indicating he might have been insane

Negligence: Duty of Care for owners & occupiers of land to trespassers: Attractive nuisance doctrine for child trespassers

Owner must take reasonable care to eliminate dangers on property or protect children from dangers if: 1.owner is aware or should be aware of dangerous condition 2.owner knows or should know children are in vicinity 3.condition likely to cause injury if encountered 4. Magnitude of the risk outweighs its utility or the expense of remedying it.

Accounting for profits?

P can discover the amount of D's gains and use the appropriate restitutionary remedy to disgorge

Strict Liability: Prima Facie Case- limited to

P can establish D's liability for P's injuries without proving D acted negligently. Product liability, animal conduct, ultrahazardous and/or abnormally dangerous conditions.

Negligence: Damages-non-recoverable

P can never recover for: interest from the date of damage in personal injury cases attorney's fees.

Product Liability: Strict Liability- damages

P can recover for physical injury or property damage, but not solely for economic losses.

Defenses to nuisance

P cannot recover if he came to the nuisance (bought property next door) for the sole purpose of bringing suit Contributory negligence is available if P asserts a negligence theory and acted negligently in creating the nuisance

Express consent- definition

P gives d verbal or written consent. Nullified by duress, fraud or mistake.

Negligence: Damages-Duty to mitigate

P has a duty to take reasonable steps to mitigate damages.

"Reasonable Apprehension"

P has knowledge of D's act and an expectation that it will result in immediate harmful or offensive contact to P's person. The apprehension must be reasonable. Note: beware of fact patterns where D appears incapable of accomplishing the threatened harm.

Negligence: Contributory

P is barred from recovery if D establishes that P's negligence contributed to injuries. Last clear chance of defense- P can rebut D's contributory negligence claim by alleging D had the last clear chance to avoid the injury- causing the accident.

Defenses to Defamation: Consent

P may consent to an organization investigating her and sharing its finding with potential employers

Product Liability: Negligence Theory vs. strict liability theory

P may establish liability for a product defect under standard negligence theory- note a product defect is almost always easier to establish under a strict liability theory.

Negligent Infliction of Emotional Distress

P may recover for emotional distress resulting from D's negligence, but only if P's emotional distress gives rise to some physical manifestation.

Element of Assault: "Immediate harmful or offensive contact"

P must apprehend an immediate or imminent battery. Words or threats of future battery are usually insufficient, unless coupled with some overt act (e.g picking up a weapon, clenching fists, etc)

Bystander claims for Emotional Distress-P was present

P must clearly witness the injury causing event

Damages (definition and types)

P must have some loss of use: Trespass-P can recover the cost of repair or rental value of Chattel. Conversion- P can recover full market value at the time of conversion or repossess the chattel. (replevin)

Negligence Damages-

P must prove damages , which are not presumed in negligence cases. Nominal damages are not available.

Negligence: Breach of Duty: Res ipsa loquitur-requirements

P must show: 1. Inference of negligence-the harm would not normally occur absent negligence 2. Attributable to D- this type of harm normally results from negligence by one in D's position 3. Injury was not attributed to P

IIED - "Severe emotional distress"

P must suffer severe emotional distress from D's conduct. Physical symptoms not necessary Note: watch for facts indicating extreme, outrageous conduct but P is unbothered- this is not IIED!

Bystander claims for Emotional Distress

P suffers severe emotional distress- physical manifestation not required, (compare to related tort of negligent infliction of emotional distress).

Commingled property?

P traces his money to an account which has been commingled to get constructive trust or equitable lien

Defamation damages burden

P's burden in proving damages depends on whether the defamatory statement was libel or slander (see card 17- defamation damages considerations)

If arrest at home? (2)

PC 1. warrant needed (unless exigent circumstances) 2. knock and announce

Vicarious Liability-Parent/child

Parents are not liable for their children's torts, but parents may be separately negligent if they had reason to know of a child's propensity to injure or facilitate the tort

Jury Instructions (FRCP 51)

Parties may file a requested jury instructions to be given to the jury during deliberations. Court gives parties its proposed jury instructions before final arguments. Parties must have reasonable opportunity to object before final arguments and before instructions are delivered to the jury

Payment or Offers to Pay Medical Expenses

Payment or offers to pay medical expenses are INADMISSIBLE when offered to prove liability for injuries. Related statements are ADMISSIBLE (distinguish this from settlement offers). Any offer to pay medical expenses in exchange for releasing liability is INADMISSIBLE, it is considered a settlement offer, not an offer to pay medical expenses E.g. "If you will sign a release, I will pay your hospital bill. I shouldn't have dropped that banana peel on the stairs." CA: Also makes inadmissible admissions of fact made in the course of making such payment offers

Condition Precedent

Performance is not obligated unless condition occurs; non-occurrence excuses performance.

Personal Jurisdiction (Overview)

Personal Jurisdiction involves the courts ability to exercise authority over parties or their property binding them to the judgment of the court. Jurisdiction must be statutorily authorized and constitutional. Statutory--An applicable state law must authorize jurisdiction (Long Arm Statute) Constitutional--Jurisdiction must satisfy due process (1) Minimum Contacts--Parties must have minimum contacts with the forum state (2) Adequate Notice--Parties must receive adequate notice of the action

Negligence Damages-types

Personal injury: D must compensate P for all damages (past, present and prospective damages). Also economic and non-economic damages are recoverable. Property damage: P can recover reasonable cost of repair-if property is irreparable, damages = full market value at the time the accident occurred. Punitive damages- only recoverable if D's conduct is wanton and willful, reckless or malicious.

Physical or Mental Examinations (Rule 36)

Physical or mental examinations are only available through court order where a person's physical or mental condition is an ISSUE in the case. The propounding party must show the party's health or condition is in controversy. If allowed, doctor-patient confidentiality disappears

Waiver of Service of Process

Plaintiff may request that defendant waive service by mailing the complaint and two copies of a waiver form, with a prepaid means of returning the form. If defendant denies the request or fails to respond, plaintiff must serve through another acceptable method. If defendant agrees to waive service, defendant extends her time to answer the complaint to 60 days from the date of waiver request was sent (as opposed to 21 days). Waiving service does not waive the right to object to venue or jx

Diversity Jx: Amount in Controversy

Plaintiff's complaint must make a good faith allegation that the amount in controversy exceeds $75,000, excluding interests and costs. To dismiss for insufficient amount, there must be no legal possibility that recovery will exceed $75K. The amount actually awarded is irrelevant. Equitable Claims--Equitable relief such as an injunction can be added to the monetary claim to satisfy the AIC requirement. Courts look at the value of the harm caused. What is the value of the harm caused by D? OR How much would it cost for D to comply with the injunction or other equitable relief? Aggregation of Claims--In order to meet the required AIC a plaintiff can aggregate (add) all claims against a single D. * If there are multiple P's and one D claims may only be aggregated if P's are seeking to enforce a single title or right in which they have a common, undivided interest * If there are multiple D's claims cannot be aggregated

Search Incident to Lawful Arrest (SILA)

Police MAY search a lawfully arrested person and his immediate surrounding area without a warrant. A search incident to arrest requires: 1) A lawful arrest 2) Search must be contemporaneous with the arrest 3) Search must be limited to area within suspect's immediate reach or movement i.e. where he could obtain weapons or destroy evidence Protective Sweeps: Police MAY sweep an area for officer safety or with reasonable belief that accomplices may be present Inventory Search: Police MAY search arrestee's belongings or seized property with jailing an arrested suspect Automobiles: After arresting occupant, police MAY search the vehicle's interior, including glove box, IF at the time of the search: 1) Arrestee is unsecured and may access the vehicle's interior; OR 2) They reasonably believe evidence of the crime for which the arrest was made may be found in the vehicle Police CANNOT search trunk without probable cause or consent Cell Phones: Policy CANNOT search digital information on a phone seized during an arrest without a warrant

Plain View Searches

Police MAY search from any place where they are legitimately present when viewing i.e when conducting the search Seizure Based on Plain View: Police MAY seize evidence in plain view without a warrant if: 1) Police are legitimately on the premises from which they viewed the evidence to be seized 2) Criminal activity or contraband is immediately apparent; AND 3) Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime Scope & Limitation of Plain View Searches: Plain view includes anything viewable from land or public property, even if only viewable through binoculars. Police cannot use technology not generally available to the public to view evidence the may constitute a plain view search (e.g. infrared scanners that can view through walls) NOTE: Use of drones for plain view searches is unsettled law Plain smell is included within plain view. If a smell gives rise to probable cause from a place of legitimate police presence, they can search that item

Justification Defense: Use of Force to Effectuate Arrest & Crime Prevention

Police Use of Force to Effectuate Arrest: (1) NDF is permissible to reasonably effectuate an arrest (2) DF is permissible to prevent the escape of a fleeing felon who poses a threat of death or serious bodily harm Citizen Use of Force to Effectuate Arrest: (1) NDF is permissible if the crime was actually committed and theres is reasonable belief that the person arrested was the perpetrator (2) DF is permissible to prevent the escape of a person who actually committed a felony and threatens human life Crime Prevention: (1) NDF is permissible to prevent a serious breach of the peace (2) DF is permissible to terminate or prevent a dangerous felony involving a serious risk of human life

Exigent Circumstances: Emergency

Police can search or seize evidence if justified by emergency circumstances (e.g. a bomb threat or act of terrorism) without a warrant

Exigent Circumstances: Hot Pursuit

Police can seize or search evidence without a warrant in exigent circumstances, a hot pursuit is such circumstance. While actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection

Exigent Circumstances: Evanescent Evidence

Police can seize or search evidence without a warrant in exigent circumstances, evanescent evidence is such circumstance. Police can search or seize evidence that could disappear if police were required to secure a warrant E.g. drugs the may be discarded, DNA evidence that may not last

Police Checkpoints

Police checkpoints must relate to a vehicle-specific purpose. A police checkpoint/roadblock that stops cars without individualized suspicion (e.g. DUI checkpoint) must: 1) Stop cars using neutral, articulable standards (e.g. every fourth car) 2) Serve purposes related to automobiles and their mobility E.g. DUI checks relate to road safety, but drug checkpoints are insufficiently related to driving, and are thus unconstitutional

Stop & Frisk aka "Terry Stop"

Police may detain a person for an INVESTIGATIVE purpose if they have reasonable suspicion of criminal activity Allowable Scope of Stop & Frisk: 1) Length: Detention must be NO longer than necessary to verify the suspicion 2) Frisk: If police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons. >> Plain Feel: If police have reasonable BELIEF during the frisk that what they feel is a weapon or contraband they may seize the suspected item. Officers cannot manipulate the item to develop reasonable belief, it must be plain touch only. Evidence validly seized is admissible Stop vs. Arrest: A stop is a brief detention, not an arrest. But police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or frisk

_________ & __________ is prima facie evidence of ownership

Possession and Claim of title

Types of Class Actions

Prejudice Class Action (Rule 23(b)(1)): Class treatment is necessary to avoid harm (prejudice) either to class members or the non-class party. Injunction or Declaratory Judgment Class Action (Rule 23(b)(2)): Allows class where suit request injunctive or declaratory relief as the primary relief sought e.g. employment discrimination, civil rights cases Damages Class Action (Rule 23(b)(3)): Most common class action type. Used when the primary relief sought is damages. This class requires: (1) common questions of law or fact predominate over individual questions, and (2) class action is the superior procedure to other procedures to resolve the dispute. Class members have OPT-OUT rights, the judgment only binds class members who do no opt-out. All reasonably identifiable class members in a damages class action must be notified of the pendency of the action, including opt-out rights and right to appear via separate counsel

Negligence:Duty of Care - Prenatal Injury

Prenatal Injury- a duty of care is owed to a viable fetus

Immunity

President has absolute immunity from civil suits arising from official actions while in office * No immunity for actions occurring prior to taking office

Pardon Power

President has the power to pardon those accused or convicted of federal crimes (not state crimes), except in cases of impeachment. * President may also commute sentences * Congress cannot limit President's pardon power

Pretrial Hearings & Bail

Pretrial (preliminary) Hearing: May be required to determine if there is probable cause to detain the suspect. Must occur within 48 hours of detention, if required. Required if: 1) Defendant is incarcerated or released upon posting bail i.e. does NOT apply if Defendant released on sole condition she appear for trail 2) There has not been a grand jury or other judicial determination of probable cause e.g. not required if arrest was made with warrant Bail: Bail must be set no higher than necessary to ensure Defendant will appear at trial. Detention without bail is constitutional, but any decision to refuse bail is immediately appealable. Arbitrary denial of bail violates due process For denial of bail, govt. must show EITHER: 1) Defendant poses a FLIGHT risk; OR 2) Defendant poses a DANGEr to the community

Impeachment by Prior Conviction

Prior Convictions: FELONIES: - If the witness is the Defendant a prior conviction of a felony is ADMISSIBLE if the government shows probative value outweighs prejudicial effect - If the witness is NOT the Defendant a prior conviction of a felony is ADMISSIBLE, but the court can exclude under 403 balancing MISDEMEANORS: A prior conviction of a misdemeanor is INADMISSIBLE unless it involves dishonesty Prior Convictions Involving Act of Dishonesty are always ADMISSIBLE, however, the court has discretion to exclude under 403 (rare exception to 403). This includes felonies and misdemeanors Convictions more than 10 years old (felonies & misdemeanors) are INADMISSIBLE unless probative value substantially outweighs unfair prejudice (Note: Inverse 403 balancing) AND the adverse party is given notice. More than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later

Prior Restraints

Prior restraints involve a prohibition on speech (or publication) before it occurs. SS applies. Identifying Prior Restraints--Look for prevention of expression. Prior restraints prevent expression, whereas other speech restrictions punish expression after it has occurred Injunctions--Most common type of prior restraint. It is extremely difficult to get an injunction prohibiting speech. * "Gag orders" against pre-trial publicity almost never allowed * Note: P buys compel with valid injunction until it is vacated or overturned; P cannot challenge a violated injunction (Collateral Bar Rule) Permits/Licensing--Govt may require licenses or permits for speech only if there is a reasonable justification for doing so. * License/permit requirements must be similar to a "rubber stamp" process and must provide procedural safeguards and judicial review for denied permits/licenses * P can challenge a denial on constitutional grounds, even if violated

Privileged Material

Privileged material is undiscoverable. The types of privileges recognized include: 1) Attorney-Client 2) Work-Product (a) Qualified: Evidentiary (factual) material prepared for litigation purposes. Protected unless opposing party shows (1) substantial need for material and (2) material is not available through other means (b) Absolute: Documents containing subjective thoughts of an attorney or party representative concerning the litigation. This privilege cannot be overcome by need for information 3) Physician-Patient 4) Clergy-Penitent 5) Marital 6) Journalist-Source 7) 5th A Privilege Against Self-Incrimination Objections based on privilege must be stated with particularity

If you see a state statute discriminating against out of state US citizens, what do you invoke?

Privileges and Immunities Art IV

Product Liability: Design Defect

Product creates an unreasonable risk of danger due to its faulty design. P must show that a hypothetical alternative design exists that is safer but has a comparable cost and purpose.

Product Liability: Manufacturing Defects:

Product departs from intended design causing it to be more dangerous than designed. P must show that the product failed to perform as safely as an ordinary consumer would expect

Freedom of Association: Prohibiting Group Discrimination

Prohibitions on group discrimination are unconstitutional only if they interfere with intimate association or expressive activities Intimate Association--Small, intimate groups have absolute freedom of association * E.g. Small groups or clubs, dinner parties Expressive Association/Activities--Groups have the right to associate for the purpose of engaging in protected 1st A activities (i.e. activities integral tot the group's purpose) *Usually involves groups formed for excessive, non-intimate associative purposes (e.g. NAACP, Bout Scouts, KKK) >> E.g. The KKK is not required to accept African-American members, as this exclusion is integral to its association and thus protected

(impeachment of a witness) reputation/opinion of witness's character? (criminal) (3)

Prop 8 eliminates many impeachment limits 1. bolstering- can bolster w/o 1st being attacked 2. specific instances are ok 3. 352- can stop the bolster or the specific acts

CALIFORNIA Prop 8

Prop 8 is part of the California Constitution, and applies to CRIMINAL cases. Under Prop 8, all relevant evidence is admissible unless the evidence falls within an exception

Types of Necessity

Public Necessity - absolute defense Private Necessity- limited defense

Speech in Public Forums

Public forums are govt property that the govt is constitutionally required to make available for speech (e.g. sidewalks, parks). Regulations must be content-NEUTRAL, if not, SS applies Restrictions on speech in a public forum--To be upheld, the restriction must: 1) Be content-NEUTRAL (i.e. only regulates time, place or manner) 2) Must be narrowly tailored to serve an important govt purpose 3) Leave open adequate, alternative channels of communication (Does not need to be the least-restrictive alternative) *Permit fees that vary depending on the type of speech are content-based and unconstitutional

Public Records Exception

Public office or agency records are admissible if the record: (1) Describes the activities of a public office or agency (2) Describes either: a. Matters observed pursuant to a duty imposed by law, OR b. Fatual findings resulting from an investigation made pursuant to authority granted by law (3) AND Are made within the scope of the duty of the public employee-author and made at or near the time of the event The court may exclude an otherwise qualifying business record if the source of the information or other circumstances indicate a lack of trustworthiness. In CRIMINAL cases, police records or other criminal investigative reports are INADMISSIBLE.

Quasi In Rem Jurisdiction

Quasi in rem jx is jx over persons where property is attached. The property is attached for some reason not necessarily involving the property itself (e.g. action against D and his assists due to fears D will flee state). The court may render judgment as to persons with respect to property

Negligence: Breach of Duty- arguments to demonstrate breach

RRP standard Negligence Per Se violation of relevant statute Specialized standard of care Custom or usage in an industry-not an automatic breach, but may be relevant

EP Standards of Review

Rational Basis 1) Alienage, but only if classification: a) Relates to the democratic process, or b) Is a congressional acton concerning immigration 2) All other classifications Intermediate Scrutiny (Quasi-Suspect Classification) 1) Gender 2) Non-Marital Children Strict Scrutiny (Suspect Classification) 1) Race 2) National Origin 3) Alienage 4) Right to Travel 5) Right to Vote

Battery - reasonable person standard

Reasonable person think the contact is harmful or offensive. To P's person or anything connected with P (hat).

Crimes Against Property: Receipt of Stolen Property

Receiving possession and control of personal property KNOWN to have been illegally obtained, with the intent to permanently deprive the owner of her interest in it Receipt of Stole Property requires: 1) Receipt of Possession and Control: Physical possession is not required, Defendant can have possession or control by designating the property's location or arranging to sell it for the original thief 2) Of Stolen Personal Property: Property must have been stolen when Defendant receives it 3) Known to have been Illegally Obtained by Another: Defendant must know or have reason to know property is stolen 4) With Intent to Permanently Deprive the Owner of his Interest NOTE: Beware of "sting" situations: If police and the true property owner know of or arranged Defendant's receipt of property, it is not truly stolen i.e. there can be no receipt of stolen property. Defendant can be convicted of attempted receipt of stolen property if she intended to receive property, believing it was stolen

IIED - Intent or recklessness

Recklessness = D disregards the likely consequences of his acts

Freedom of Religion

Religion is protected under the Free Exercise Clause and the Establishment Clause of the 1st A Free Exercise Clause--The FEC protects freedom to exercise religion. Strict scrutiny applies. * Limitation--FEC only applies if the purpose of the law is to limit or interfere with religious practice >> Laws of general applicability (i.e. not designated to regulate or interfere with religion) are valid * Govt cannot deny benefits to individuals who quit jobs for religious reasons Establishment Clause--If the govt discriminates against a specific religion or sect (as opposed to religion generally_ the EC applies and strict scrutiny is used. * If the govt restricts or burdens religion WITHOUT discriminating against a specific faith or group, the Lemon test applies. A govt act burdening religion will only be upheld if: 1) The is a secular purpose behind the act 2) The act's primary purpose neither advances nor inhibits religion; and 3) The act does not create excessive entanglement with religion

Removal Power

Removal Powers * President--Can remove high-level executive officers >> Congress can statutorily limit President's power to removal all other executive appointees (e.g. can require good cause for removal) * Congress--Can only remove executive officers through its impeachment power * Article III Judges cannot be removed "during good behavior"

Requests for Admission ("RFAs") (Rule 36)

Requests for Admissions are request to parties to admit the truth of discoverable information. If a party had admitted information, it does not have to be litigated at trial; opposing party can show jury the admission. The deadline for responses is 30 days. Responding party can admit, deny, or state that it lacks sufficient knowledge

Requests for Production ("RFPs") (Rule 34)

Requests for Production are written requests to a party to make documents or other things within the party's control available for review, inspection, and/or copying. The deadline for responses is 30 days after RFP served. If seek information from non-party's must subpoena

Strict Liability :Abnormally Dangerous Conditions-requirements

Requirements for proving abnormally dangerous activity: 1. condition or activity imposes a severe risk of harm to persons or property 2. It cannot be made reasonably safe 3. The condition or activity is uncommon in the community. Note; often arises on the MVE with explosive toxic and/or biohazard materials

Product Liability: Implied Warranties- fitness for purpose

Requirements: 1. seller knows or has reason to know the particular purpose for which buyer is purchasing 2. buyer relies on seller's skills or judgement 3. seller implies that goods are fit for that purpose ( shoe salesman- running show- expertise)

If any of the trust elements fails, what is the effect?

Res/property results back the settlor's estate.

Negligence:Duty of Care-Rescuer's Exemption

Rescuer's Exemption: if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer's injuries, even if unforeseeable.

What's the standard for riparian rights?

Riparian owners are given reasonable use of water, and you cannot enjoin other riparians unless they substantially interfere. natural uses prevail over artificial.

Crimes Against Property: Robbery

Robbery is the wrongful taking of another's personal property from his person or presence by force or threat of injury, with the intent to permanently deprive Small force or threat will suffice. Threat of injury must be to victim, a member of her family, or a person in her presence. Victim must give up the property because she feels threatened or harmed. Threats of future harm are insufficient Robbery = Assault or Battery + Larceny

Rule 11 Certifications & Sanctions

Rule 11 requires the attorney or pro se party to sign all pleadings, written motions, and other papers (does not apply to discovery). When the attorney or pro se party signs documents they are certifying that to the best of her knowledge or belief, after reasonable inquiry: (1) The paper is not for an improper purpose (e.g. harassment or delay), (2) AND The legal contentions are warranted by law (e.g. non-frivolous) (3) Factual contentions and denials have evidentiary support or are likely to have such support upon further investigation In addition, this certification is made every time a position is presented to the court. If there is a violation, sanctions may be imposed either on the courts own initiative or an opponent party's motion. Sanctions can be imposed on the (1) party, (2) attorney, or (3) law firm. Before a sanction can be imposed, the court must give the party a chance to be heard. Rule 11 motion for sanctions may not be filed until 21 days following service of the offending document, the party in violation has a safe harbor of 21 days to fix the problem to avoid sanctions

Answer

Rule 12 requires a defendant to respond in one of two ways: (1) by answer or (2) by motion. An answer is a pleading. It does two things: (1) responds to allegations of the complaint and (2) raises affirmative defenses. The answer must be filed within 21 days after service of process or 14 days after a ruling on a Rule 12 motion or 60 days if defendant waived service by mail. Respond to Allegations of Complaint--The defendant must either: 1) Admit Allegations 2) Deny Allegations--Failure to deny allegations can constitute admission on any issue except damages 3) OR State that there is lack of sufficient information to admit or deny allegations Raise Affirmative Defenses--An affirmative defense raises a new fact in the case, which will allow the defendant to win. Certain defenses are waived if not explicitly pleaded in the answer; these include: 1) Contributory Negligence 2) Claim Preclusion 3) Statute of Frauds 4) Fraud 5) Statute of Limitations 6) Self-Defense

Rule 12 Motions

Rule 12 requires a defendant to respond in one of two ways: (1) by answer or (2) by motion. Motions are not pleadings, they are requests for a court order. Defendant may attack the validity of plaintiff's complaint through a Rule 12 motion. Rule 12(b) Defenses may be raised by motion or in the answer: (1) Lack of SMJ (2) Lack of PJ* (3) Improper Venue* (4) Insufficiency of Process (problem with papers)* (5) Insufficiency of Service of Process* (6) Failure to State a Claim* (7) Failure to Join a Necessary Party *These defenses are waived if not included in defendant's Rule 12 motion, provided they were available Issues of form: (1) Motion for a more definite statement (Rule 12(e)): If the complaint is so vague or ambiguous that defendant cannot reasonably prepare a response, defendant may move for a more definitive statement from plaintiff (2) Motion to Strike (Rule 12(f)): Defendant may move to strike the complaint (or court may strike on its own) any redundant, immaterial, impertinent, or scandalous material (2) Motion for Judgment on the Pleadings (Rule 12(c)): Defendant may move for judgment on the pleadings due to plaintiff's failure to bring a plausible claim. Defendant is arguing that even assuming all allegations in the complaint or pleadings are true, plaintiff cannot win

Permissive Joinder (Rule 20)

Rule 20 permits a PLAINTIFF in certain circumstances to join other plaintiffs and/or to join several parties as co-defendant's. Permissive joinder is allowed where: (1) Joined parties assert any right to relief arising out of the same T/O as plaintiff's claim (2) There is at least one common question of law or fact in the joined parties' claims or claims against them E.g. After bus accident, all injured passengers and bystanders join as Plaintiffs; common issue is driver's negligence. Other issues like damages or contributory negligence tried individually for each P

SOF: Service contracts incapable of being performed w/in 1 year

SOF does not apply to lifelong deals or contracts that say nothing about time for performance ***Both are capable of performance w/in one year

Custom Made Goods

SOF is satisfied once seller makes substantial beginning towards performance

(SP) inter-spousal torts?

SP of prevailing spouse - award becomes SP of prevailing spouse

If a spouse waives their privilege to invoke confidential marital communications, what should you look for?

See if the non waiving spouse is dead. If so, you can't keep that testimony out. If alive, the living spouse can also assert the privilege.

Justification Defense: Self-Defense

Self-defense may be used in response to imminent threats of unlawful force. NDF: A Defendant may use non-deadly force if he: 1) Is not at fault i.e. not the initial aggressor; AND 2) Reasonably believes it necessary to protect himself from imminent unlawful force 3) There is no duty to retreat NOTE: The amount of force permitted depends on the nature of the provoking offense; generally, it must be proportionate DF: A Defendant may use deadly force if he: 1) Is not at fault; AND 2) Reasonably believes he is confronted with unlawful force that threatens imminent death or great bodily harm 3) There is no duty to retreat under the majority rule 4) Under a minority jx Defendant is required to retreat if safe. There is no duty if (a) home, (b) victim of rape or robbery, or (c) police officers Self-Defense by an Initial Aggressor: Self-defense is available to an initial aggressor if EITHER: 1) Initial aggressor effectively WITHDRAWS before the need for self-defense arises and COMMUNICATES his desire to do so; OR 2) Victim of the initial aggression suddenly escalates a minor dispute into a deadly altercation Defense of Others: Same rules apply as for self-defense. Defendant can defend another if Defendant reasonably believes the person he is protecting could have legally defended himself

Counteroffer

Serves as a rejection of the offer, terminates the original offer and becomes a new offer

Conditional Acceptance

Serves as a rejection of the offer, terminates the original offer and becomes a new offer. Look for these terms: "if", "only if", "but", " "provided" "so long as" "on the condition that"

How can a religious organization overturn an otherwise constitutional law of general applicability?

Show that it was motivated by a specific congressional purpose to inhibit the religion's religious objectives.

Inchoate Offense: Solicitation

Solicitation is the inciting, urging or otherwise asking another to commit a crime with the intent that they commit that crime. No affirmative response from the solicited person is required. Solicitation is complete when Defendant ASKS solicitee to commit the felony. If solicitee agrees, it gives rise to conspiracy and the solicitation MERGES with the conspiracy (i.e. the only crime remaining is the conspiracy). It does NOT matter if the solicited party is convicted OR if the solicited crime was impossible to commit DEFENSES: Very few defenses apply to Solicitation 1) Refusal by the solicitee is NOT a defense 2) Impossibility and withdrawal are NOT defenses 3) MPC allows renunciation as a defense, but CL does not (most jx follow CL)

Reasonable person

Someone with defendant's physical characteristics, but with the knowledge and mental capacity of an ordinary person

Specific Intent Crimes

Specific intent crimes require a requisite intent for each. Defenses include voluntary intoxication and mistake of fact FIAT: First Degree Murder, Inchoate Offenses, Assault, Theft Crimes 1. Attempt: Intent to complete the crime 2. Larceny & Robbery: Intent to permanently deprive the victim of his interest in the property taken 3. Forgery: Intent to defraud 4. False Pretenses: Intent to defraud 5. Embezzlement: Intent to defraud 6. Conspiracy: Intent to aid or encourage completion of the crime 7. Assault: Intent to commit a battery 8. Burglary: Intent to commit a felony in another's dwelling 9. First-Degree Murder: Premeditation and/or deliberation 10. Solicitation: Intent to have solicited commit the solicited crime

Intent

Specific intent-intent to bring about specific harm. General intent-substantial certainty that tortious conduct will result from D's act

Non-Monetary Remedies - Specific Performance

Specific performance is available only in contracts involving either real estate or unique goods. For service contracts injunctions preventing breach of service contract may be availiable

Dormant Commerce Clause (Negative Implications of the Commerce Clause)

State and local laws that affect interstate commerce may be unconstitutional if they are unduly burdensome Analysis--Ask if a state/local law or regulation is discriminatory (i.e. does it discriminate against non-state residents and/or favor local economic interests) and apply either of the following: * Non-discriminatory state law--Violates DCC if it: 1) Burdens interstate commerce, AND 2) The burden exceeds any legitimate local benefits produced by the law * Discriminatory state law--Violates DCC if it: 1) Burdens interstate commerce, AND 2) Is not necessary to achieve an important govt purpose (i.e. no reasonable, less discriminatory alternative exists) >> Note: discriminatory state/local laws will almost always be invalid under this test EXCEPTIONS: State laws burdening interstate commerce is valid if: 1) Express federal govt approval, OR 2) State is a Market Participant--State and local govts can favor their own citizens in giving subsides, govt hiring, got purchasing, etc. >> E.g. State universities can give tuition discounts to instate residents Note: Individuals, Corporations and Aliens can sue under DCC

Statutory Limits on Personal Jurisdiction

State laws often determine when courts may exercise jx. Most state statutes grant in personam jx if either: (1) D is personally served in the forum state. Duration of D's presence is irrelevant (2) D is domiciled in the forum state. Domicile means the D maintains permanent home in the forum state. Court can exercise jx over domiciled persons even if they are not physically present when served (3) D consents to jx (can be express or implied) (4) D's acts fall within the state's long-arm statute (LAS) * A general/unlimited LAS confers states' courts with jx to the extent allowed by the Const. * A limited/enumerated LAS specifies when state courts can exercise jx

CA: Statment Describing Infliction or Threat of Physical Abuse (the "OJ Exception")

Statement made at or near time of injury or threat, by an unavailable declarant, describing or explaining inflation or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances **Watch out for Confrontation issue!

Family Records

Statements of fact found in family keepsakes, e.g. jewelry engravings, genealogies are admissible.

Contracts Clause

States cannot impair contractual duties. Applies only to state/local interference with existing contractual obligations, including govt. obligations Levels of Scrutiny--Different for private vs. public K's >> Private K's--Require intermediate-type scrutiny. If a law substantially impairs a party's rights under an existing K, if it violates the K Clause unless the law: 1) Serves an important legitimate public interest; and 2) Is reasonable and narrowly tailored in promoting that interest >> Govt. K's--Require stricter scrutiny. Local laws substantially impairing or interfering with existing govt. K's must be reasonable and necessary to serve an important public purpose

Intergovernmental Immunity

States may not directly tax or regulate fed govt activity * Incidental taxes are acceptable >> E.g. States can collect income tax on federal employees working with the state or tax private entities doing business with the fed govt.

State Taxation of Interstate Commerce

States may only tax activities that have a substantial nexus to the state * A state may not use its tax systems to help in-state businesses or discriminate against interstate commerce * Taxation of interstate businesses must be fairly apportioned >> I.e. A state can only tax the portion of the business connected to the state

If you see someone suing an estate for performance of an oral contract, what should you look out for?

Statute of Frauds fakeout. Just because it was oral and an estate is being sued doesn't mean it falls under the Statute. The executor is required to pay the expenses out of pocket for the statute to apply.

Strict Liability Crimes

Strict Liability Crimes include: 1. Statutory Rape 2. Regulatory Crimes 3. Administrative Crimes 4. Morality Crimes (e.g. bigamy, polygamy)

Negligence: Breach of Duty: Actual Cause- Substantial factor test:

Substantial factor test:for multiple causes of P's injury. D's breach is the actual cause if it was a substantial factor in bringing about P's injury. Used if multiple causes bring about P's injury and any one of them alone would have caused the injury (fire start on D1's land and D2"s land, each of which spreads to P's land and destroys home.

What happens if the plaintiff is claiming lost profit damages, but the defendant put down earnest money?

Subtract the earnest money from the plaintiff's damages.

Supplemental Jx

Supplemental jx allows a federal court to hear additional claims that do not on their own meet diversity or FQ requirements. Federal courts have supplemental jx over all claims so related that they form the same claim or controversy. Each additional claim must have a common nucleus of operative fact arising from the same transaction or occurrence. A court may deny supplemental jx in cases where: 1) It raises novel or complex issues of state law 2) The supplemental claim dominates the main claim 3) Court dismisses the original claim; OR 4) Other compelling reasons NOTE: In diversity cases a Plaintiff CANNOT use supplemental jx to overcome lack of diversity. This limitation does not apply to D's or third-party defendants. The only exception is when there are multiple P's and one of them does not meet the AIC requirement

Supplemental Pleadings

Supplemental pleadings set forth things that happened AFTER the pleadings were filed. If a party would like to add a claim to the existing case they would file a supplemental pleading. Supplemental pleadings are always discretionary

Symbolic Speech

Symbolic speech refers to expressive or communicative conduct (i.e. conduct intended to convey a message). Govt can regulate symbolic speech if: 1) The regulation furthers an important govt interest 2) The govt interest is unrelated to suppression of the message >> If the restriction is aimed at speech more than conduct, it is likely unconstitutional 3) The impact on speech is no greater than necessary to further the important govt interest Examples: * Burning U.S. flag-- protected symbolic speech * Burning a draft card-- not protected * Nude dancing-- not protected * Burning a cross-- protected unless intended to threaten

personally perform, no delegation?

T liable if: 1. fails to use reasonable care in selecting agents 2. fails to remedy improper acts 3. improper delegation (only purely ministerial, not discretionary)

testamentary intent?

T must intend to dispose of his property upon death.

what is crucial about a statement against interest

THE DECLARANT MUST BE UNAVAILABLE TO TESTIFY

Contract provisions invalidating assignments

Take away both the right and the power to assign. That is, any assignment is invalid and unenforceable.

Contract provision prohibiting assignments

Take away the right to assign, but not the power to assign. That, an assignee can still enforce the assignment fi he was unaware of the provision.

Can congress limit the appellate jurisdiction of the SCOTUS?

Technically yes, but not in any way that seriously interferes with the establishment of a supreme and uniform body of federal constitutional law. Ex - they can't prevent SCOTUS from ruling on state statutes preventing abortion.

In evidence, is the physician patient privilege available in federal cases?

Technically yes, but not when its under a federal statute because then you don't have a state supplying the rule of law.

Does jeopardy attach if you have a hung jury?

Technically yes, but you can get a new trial so apparently jeopardy also attaches after the second jury convenes.

What is a trick with criminal "attempt" statutes

Testers will insert additional elements of the charge that look exactly like the attempt statute to try to suggest it impossible to be charged with an attempt of an attempt. This is a trick. You are dealing with a separate attempt crime.

Former Testimony

Testimony given by a person in an earlier proceeding or deposition may be admissible if: 1) The declarant is unavailable 2) Declarant's prior testimony was given under oath; AND 3) Party against whom testimony is now offered was either: a. A party in the the previous action and had an opportunity to cross-examine declarant >> Motive for cross-examining declarant in former hearing must be similar to the current motive b. A predecessor in interest of a party in the previous action, in which there was an opportunity to cross- examine declarant and a similar motive for doing so >> Applicable in CIVIL actions only >> Predecessor in interest is one who has a close privity-type relationship with the party in the earlier proceeding

Lay Opinion Testimony

Testimony in the form of opinion is INADMISSIBLE unless the witness qualifies to give a lay or expert opinion. Lay opinion is admissible if: (1) The opinion is rationally based on the witness's PERCEPTION (2) The opinion is HELPFUL to the trier of fact. Helping meaning it gives the jury more information regarding the witness's perception than the perception alone. Legal conclusions are INADMISSIBLE because they are deemed unhelpful (3) Not based on (a) scientific, (b) technical, or (c) other specialized knowledge (i.e. not int he realm of expert opinion) Examples of Admissible Lay Opinion Testimony include: (1) Speed of Car (2) Emotional State of an Individual (3) Voice or Handwriting Recognition (4) Sense Recognition (5) Intoxication

Sovereign Immunity

The 11th A bars suit against state govts in federal court. Federal courts cannot hear claims from a private party or foreign govt against a state govt EXCEPTIONS: Suits against state govts are allowed if: 1) The state explicitly waives sovereign immunity or consents 2) The suit involves the enforcement of law under Section 5 of the 14th A and Congress has removed immunity 3) The federal govt brings suit 4) Bankruptcy proceedings Suits against state officers--Can be brought in federal court if the suit involves either: a) Injunctive relief claim for violation of the Const. or federal law; OR b) Claim for money damages to be paid by the state officer personally

Due Process: Burden of Proof/Sufficiency of Evidence

The 14th A Due Process Clause requires that the govt. prove guilt beyond a reasonable doubt in all criminal cases Prosecution must prove ALL elements of every crime charged beyond a reasonable doubt. Burden is always on the prosecution, this cannot be changed. Defendant has the burden of proving any affirmative defenses he raises

Takings Clause

The 5th A Takings Clause prohibits govt from taking private property for public use without providing just compensation to the owner and/or occupant There is a 3-party analysis to determine if a taking is constitutional: 1) Has there been taking? >> Possessory Taking--Govt confiscation or physical occupation of a property. The amount of property taken is irrelevant >> Regulatory Taking--Govt regulation that leaves no economically viable use for a property; factors in determining if a regulatory taking has occurred include: a) Social good promoted by the regulation b) Loss to owner c) Owner's expectations for his property 2) Is the taking for public use? A taking is for public use if govt acts with reasonable belief that the taking will benefit the public (very low standard) 3) Is just compensation paid? Compensation is measured in terms of loss to the owner and the reasonable market value. The benefit/worth to the govt is irrelevant. Notes: * A decrease in value is not a taking, balance factors such as: (1) economic impact and (2) investment-backed expectations * Govt conditions of development of property must be justified by roughly property benefit to burden or else it will be considered a taking * Temporary denial of use is not a taking if govt acts reasonably

5th Amendment Privilege Against Self-Incrimination

The 5th Amendment privilege against self-incrimination prohibits a witness from being compelled to testify against herself. This applies in civil and criminal cases (including sentencing). Courts will allow a witness to invoke the privilege if there is some reasonable possibility of self-incrimination *Criminal Defendant's cannot be punished for invoking privilege

Right to Confront Witnesses

The 6th A gives Defendant the right to confront adverse witnesses. Defendant has a right to have adverse witnesses testify in-person and subject to cross-examination. Defendant can be removed from court for disruptive behavior In-person testimony is NOT required if: (1) Exclusion is necessary for public policy, and (2) Reliability of the testimony is otherwise assured Co-Defendant Confessions: A co-Defendan'ts confession implicating Defendant is INADMISSIBLE against Defendant at a JOINT jury trial (ok at bench trial), EXCEPT when: (1) Confessing co-D testifies subject to cross-examination; OR (2) D's have separate trials; OR (3) Confession is edited so that all portions referring to the co-D are eliminated; OR (4) Co-D's confession is used to rebut D's claim that his confession was obtained coercively Hearsay: Prior testimonial statements of UNAVAILABLE witnesses are ONLY admissible if Defendant had the opportunity to cross-examine the declarant when the statement was made

Right to Speedy Trial

The 6th A guarantees Defendant the right to a speedy trial. It protects Defendant from unreasonable delay between the time charges are filed and the beginning of trial. The right attaches once Defendant has been arrested or charged Violations are determined under a totality of the circumstances. Courts look at the following factors: (1) length of delay, (2) reason for delay (did D contribute to delay), (3) whether D asserted his right to speedy trial, and (4) whether the delay has prejudiced D Remedy for violation is dismissal of the case WITH prejudice

Right to a Jury Trial & Jury Requirements

The 6th A provides right to a jury trial for all "SERIOUS OFFENSES." A serious offense is one that authorizes a sentence of imprisonment of more than 6 months Jury Size and Selection Requirements: (1) Jury Size and Unanimity: A jury MUST contain at least 6 jurors. There is NO constitutional right to a unanimous verdict. However, a 6-member jury verdict must be unanimous. 11-1, 10-2, and 9-3 jury verdicts have been upheld (2) Juror Composition Requirements: The jury pool ("venire") must be a representative cross-section of the community. The actual jury does NOT have to be representative (3) Right to an Impartial Jury: Defendant can question potential jurors on possible prejudices if relevant to the case (e.g. racial biases, feelings on the death penalty). Defendant can challenge for cause based on prejudices and has unlimited challenges for cause if relevant to the case (4) Peremptory Challenges: Cannot be used to exclude jurors on account of race and gender (violates EPC)

Right to a Jury Trial & Voir Dire

The 7th Amendment provides a right to a jury trial in all civil actions at LAW, but not equitable claims (left to judge to decide). The demand must be made within 14 days of service of the last pleading raising a triable issue, otherwise the right to jury trial is waived. A minimum of 6 jurors (verdict must be unanimous), and a maximum of 12 jurors is allowed. No alternate jurors are allowed in federal court Voir dire is the jury selecting process occurring at beginning of trial. Each party may strike jurors, either for cause or through preemptory challenges. * A For-Cause Strike is used to strike a potential juror for cause such as bias, prejudice, relation to party, etc. Each party has unlimited for-cause strikes * Preemptory challenges can be used for any race-neutral and gender-neutral purpose. Each party has 3 to use during voire dire

Bill of Rights: Application to Federal & State Govt

The Bill of Rights only applies directly to the federal govt * Certain provisions of the BOR apply to state and local govts under the incorporation doctrine * The SC has selectively held specific BOR provisions applicable to the states through incorporation into the 14th A Due Process Clause >> Most BOR provisions are now incorporated EXCEPTIONS: Certain provisions of the BOR are not incorporated by the 14th A to states, including: * 3rd A right to not have soldiers quartered in homes * 5th A right to grand jury indictment in criminal cases * 7th A right to jury trial in civil cases * 8th A right against excessive fines Reverse Incorporation * The 14th A Equal Protection Clause does not apply directly to the fed govt, but has been held to apply to the federal govt through the 5th A DP Clause

Class Action Fairness Act (CAFA)

The Class Action Fairness Act (CAFA) is a separate means of obtaining SMJ in class action. Jx exists if: (1) Any class member is diverse of any opposing party, (2) AND Aggregated claims of the class exceed $5 million CAFA does not apply to: (1) Class actions with less than 100 class members (2) Shareholder claims against corporate management (3) Certain state securities fraud claims

Power to Regulate Commerce (Foreign or Domestic)

The Commerce Clause gives Congress exclusive authority to regulate interstate commerce. The power to regulate intrastate commerce depends on the nature of the activity (economic vs. non-economic) INTERstate Commerce--Between States Congress may regulate: 1) Channels; 2) Instrumentalities; OR 3) Economic activities that have a substantial effect on interstate commerce This Includes persons and things in interstate commerce INTRAstate Commerce--Within States * Economic Activities: Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce * Non-Economic Activities: Congress may only regulate non-economic activity if it has direct, substantial economic effect on interstate commerce (tougher burden to satisfy) Dormant Commerce Clause--Limits state laws burdening interstate commerce (i.e. potentially interfering with Congress' commerce power)

Co-Defendant Statements

The Confrontation Clause bars admission of a hearsay statement by a non-testifying co-Defendant if the statement expressly implicates another Defendant. EXCEPTIONS: A co-Defendant's hearsay statement is admissible if: (1) The declarant co-Defendant testifies and is subject to CROSS-EXAM; OR (2) Portions of the co-Defendant's testimony referring to the non-declarant Defendant are REDACTED; OR >> Reaction is not effective unless it clearly makes the non declarant co-Defendant's identity anonymous (3) Thes statement is used to REBUT a charge of a COERCED confession

Co-Defendant Statements

The Confrontation Clause bars admission of a hearsay statement by a non-testifying co-Defendant if the statement expressly implicates another Defendant. EXCEPTIONS: A co-Defendant's hearsay statement is admissible if: (1) The declarant co-Defendant testifies and is subject to CROSS-EXAM; OR (2) Portions of the co-Defendant's testimony referring tot the non-declarant Defendant are REDACTED; OR >> Reaction is not effective unless it clearly makes the non declarant co-Defendant's identity anonymous (3) Thes statement is used to REBUT a charge of a COERCED confession

Bill of Attainder

The Const. prohibits state and federal govts from passing retroactive laws, including bills of attainder. A Bill of Attainder is a legislative act that punishes specific individuals without a judicial trial. * E.g. An order to imprison a person without judicial process

Ex Post Facto Clause

The Const. prohibits state and federal govts from passing retroactive laws, including ex post facto laws. The Ex Post Facto Clause prohibits ex post facto laws. A law is an ex post facto law if it either: a) Criminally punishes conduct that was lawful when done, or b) Increases punishment for a crime after it has been committed, or c) Reduces the burden required to convict a person for a crime after it has been committed It does not apply to civil liability, where retroactive legislation must only meet rational basis.

Due Process & Defendant's Mental Condition During Trial

The Due Process Clause prohibits a Defendant from being tried, convicted, or sentenced if, as a result of his mental disease or defect, Defendant is unable to either: 1) Understand the nature of the proceeding brought against him, OR 2) Assist his lawyer in the preparation of his defense

EP Application & Approach

The EPC prohibits the govt from unreasonably treating similarly situated persons differently. The EPC applies to state/local govts through the 14th A and applies to the federal govt by incorporation though the 5th A DP Clause Approach to EP: 1) Is there a discriminatory classification? >> To receive heightened scrutiny, a discriminatory classification must be proved 2) What level of scrutiny applies given the classification? >> Suspect Class = SS >> Quasi-Suspect Class = IS >> All other alleged classifications = RB 3) Does the classification satisfy the proper level of scrutiny?

Limitations on Exclusionary Rule

The Exclusionary Rule applies only to SEARCHES in violation of a federal statue or the U.S. Constitution. Exclusionary Rules does NOT apply to 1) Grand jury proceedings, civil proceedings, parole hearings, or administrative cases 2) Violations of the "knock and announce" rule in executing search warrants 3) Evidence seized as a result of Miranda violations Excluded Evidence and Impeachment: Confessions resulting from Miranda violations or illegally obtained evidence may be used to impeach Defendant's testimony at trial (but only Defendant's testimony, not all testimony) Govt. Good Faith Defenses to Exclusionary Rule: Illegally obtained evidence will NOT be excluded if the govt demonstrates that it relied in good faith on either: 1) A reasonably relied upon but defective search warrant 2) A judicial opinion or statute that was later changed or declared invalid

Exclusionary Rule

The Exclusionary Rule prohibits the introduction of evidence obtained in violation of Defendant's constitutional rights in a criminal trial Fruit of the Poisonous Tree Doctrine: Evidence derived or obtained from illegal govt conduct is excludable against Defendant. Arises when illegal police action leads to evidence Exclusionary Rule Exceptions: Illegally obtained evidence is admissible if govt can "break the chain" between the illegal govt conduct and the seized evidence; 4 ways to break the chain: 1) Independent Source: Govt had an independent source for obtaining the evidence i.e. independent from the original illegality 2) Inevitable Discovery: Govt would have discovered illegally derived evidence even without illegal conduct 3) Intervening Acts of Free Will by Defendant: After initial illegality, Defendant led police to the evidence by his own free will 4) Attenuation: Where evidence challenged is too remote and attenuated from unlawful search or seizure Remedy for Exclusionary Rule Violation: Harmless error review. For admission of illegally-seized evidence to be upheld on appeal, the govt must show that it was harmless beyond a reasonable doubt

Settlement (FRCP 68)

The FRCP actively encourages settlements through various meanings, including mandatory settlement conferences. During a mandatory settlement conference, a court-appointed advisor meets with parties privately and offers evaluation of the weaknesses of their respective cases Under Rule 56, parties may make formal settlement offers at least 14 days before the date set for trial. If an offeree obtains judgment less favorable than the unaccepted offer, offeree must pay costs incurred by the offering party after the offer was made

Speech or Debate Clause

The Speech or Debate Clause provides immunity from prosecution to members of Congress for "legislative acts" * Applicability--Applies to legislators and aides who perform acts that would be immune if performed by the legislator >> Not applicable to STATE legislators Scope--Provides immunity for activities occurring in the regular course of the legislative process * E..g voting, preparing committee reports, conducting hearings, hiring staff * Outside Scope--Speeches and publications made outside Congress, republication of defamatory statement made in Congress, accepting bribes are not legislative acts

If a land sale contract is silent on the risk of loss, who is it on before closing?

The buyer, not the seller!

Jury Verdicts (FRCP 49)

The court decides which verdict to be used. There are 3 types: (1) general verdicts, (2) special verdicts, or (3) general verdict with interrogatories (1) General verdicts a jury finds for plaintiff or defendant and decides amount of damages or relief due (2) Special verdicts asks jury to make a factual finding; court applies the law to those facts * Courts submits questions to jury regarding each ultimate fact and makes legal conclusions based on jury findings * Parties may object to proposed jury questions before jury deliberates (3) General verdict with interrogatories a court can require a general verdict and ask jury to answer specific questions concerning ultimate facts. The purpose is to ensure jury properly considered important issues

8th Amendment: Death Penalty

The death penalty MAY ONLY be used at sentencing if the victim DIES as a result of Defendant's crime. In order to be valid: (1) The statute allowing death penalty must not be unconstitutionally vague; AND (2) Jury must be allowed to consider mitigating circumstances e.g. D's abusive childhood, mental impairments, etc.; AND (3) There must be at least one "aggravating circumstance" (e.g. prior convictions) support the sentence The death penalty CANNOT be imposed if: (1) Defendant was under 18 when the crime was committed; (2) Defendant is mentally disabled i.e. has mental retardation; (3) Defendant is insane at the time of execution; OR (4) The conviction was for felony murder, and: a) Defendant was not a major participant, OR b) Defendant did not act with depraved indifference to human life

Is there subject matter jurisdiction when Plaintiff from State A wants to interplead two defendants from State B?

The federal diversity statute is no good, but Rule 22 of FRCP will still allow the Plaintiff to interplead them as an alternate route.

Incitement of Imminent Unlawful Activity

The govt may punish speech if: 1) There is a substantial likelihood the speech will bring imminent illegal activity; AND 2) If the speech is aimed at causing imminent illegality Note: This test is often referred to as the "Clear & Present Danger" test; it is difficult to satisfy; the law must be narrowly tailored

What happens if a senior lienholder forecloses and does not include the junior?

The junior lien remains on the property, and the senior must pay them off (redeem) in order to avoid foreclosure by the junior.

What happens to judicial liens on joint tenant property after the death of the tenant on which the lien is affixed?

The lien is extinguished upon her death.

What if repudiation involves demands for a new bargain or benefit?

The non-repudiating party is not required to notify the repudiating party of his refusal to comply with the demands

Physician-Patient Privilege

The physician-patient privilege is a statutory privilege in most states, but not found in the FRE. The physician-patient privilege prevents disclosure of information confidentially conveyed by a patient to a physician. To be protected, the communication must be: (1) Made for purposes of obtaining diagnosis or treatment (2) Pertinent to a diagnosis or treatment; AND (3) Intended by the patient to be confidential The privilege does NOT apply where: (1) Patient's condition is a legal issue (e.g. personal injury) (2) Physician's services were sought to aid in a crime, tort, or to escape capture; OR (3) Dispute between doctor and patient (e.g. malpractice) Note: MBE usually assumes the existence of this privilege, but an answer choice indicating privilege as an evidentiary rule will be incorrect

Psychotherapist/Social Worker-Client Privilege

The psychotherapist/social worker-client privilege is a statutory privilege in most states, but not found in the FRE. The psychotherapist/social worker-patient privilege prevents disclosure of material conveyed by patient in a civil and criminal cases if: (1) Client intends the communication to be confidential; AND (2) Communication is made to facilitate therapy or social work Note: MBE usually assumes the existence of this privilege, but an answer choice indicating privilege as an evidentiary rule will be incorrect

Amending Pleadings: Relation Back (Rule 15(c))

The relation back doctrine applies when a party amends a pleading to add a new claim or defendant AFTER the statue of limitations has run. Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem To join a new claim the amended pleadings relate back if the they concern the same conduct, T/O as the original pleading. To join or change a defendant the amendment will relate back if: (1) It concerns the same conduct, T/O as the original; (2) The new party knew of this case within 90 days of its filing; (3) AND She also knew that, but for mistake, she would have been named originally This applies when the plaintiff sued the wrong defendant first, but the right defendant was aware of the mistake

Spousal Testimonial Privilege

The spousal testimonial privilege applies in CRIMINAL cases only. A witness may refuse to testify against a spouse DURING marriage. Only the witness may invoke the privilege (i.e. Defendant cannot prevent a willing spouse from testifying against him)

What happens if you make an oral suretyship that is really just for your own benefits?

The statute of frauds doesn't apply.

Model Penal Code (MPC) Mes Rea

There are 4 MPC mental states: (1) purposely, (2) knowingly, (3) recklessly, and (4) negligence Purposely: A person acts purposely when his CONSCIOUS objective is to engage in certain conduct or cause a certain result Knowingly: A person acts knowingly when he is AWARE his conduct will very likely cause the result Recklessly: A person acts recklessly when he CONSCIOUSLY DISREGARDS, a SUBSTANTIAL and UNJUSTIFIABLE risk Negligence: A person acts negligently when he fails to become aware of a substantial and unjustifiable risk

Crimes Against Person: Assault

There are two theories of assault under CL: 1) Assault as a THREAT is a general intent crime. This is the intentional creation of a Victim's reasonable apprehension of imminent bodily harm. Words alone are usually insufficient 2) Assault as an attempted BATTERY is a specific intent crime. NOTE: May have an "aggravated" counterpart which usually arises when carried out with the use of a weapon

Speech on Private Property

There is not 1st A right to use private property for speech purposes (e.g. privately owned shopping centers)

If a person withdraws from a conspiracy, what should you be mindful of?

They are still liable for conspiracy, even if not the underlying offense.

Club hires a crazy bouncer who is an ex-con without doing a proper background check. Bouncer/guard shoots someone while off duty at some different bar/club. Their defense is it's outside the scope of his employment. Verdict?

They could still be liable if they were negligent in hiring him, like if a reasonable employer could have prevented this.

If a senior mortagee adds new terms to an agreement, and then a junior mortgagee (who would have priority over the modification) forecloses, but does not include the senior mortgagee in the action, what is the status of the modified terms?

They survive.

What is peculiar about six member juries?

They're allowed, but they must have unanimous verdicts.

Expectation Damages -

This is a standard measure of money damages that puts the parties in the economic position as if the contract had been performed (ie breach never occurred). look for the answer that gives the non breaching party the money she would have received absent the breach

Negligence:Duty of Care - Foreseeable Victim

Those within the zone of danger (area around D's activities in which a P could foreseeably be injured).

Interlocutory Appeals

Though generally only final orders are appealable, some interim (interlocutory) orders may be appealed before final judgment. Interlocutory orders that are reviewable as of right include: (1) Orders concerning injunctions (2) Orders concerning appointment of receivers (3) Orders where only an accounting is left in the case (4) Orders affecting property (e.g. attachment) Collateral Order Exception: Appellate court MAY hear an interlocutory appeal on an issue if it is: (1) Too distinct from the merits of the case (i.e. collateral) (2) Too important to be denied review; (3) AND Would essentially be unreviewable if the parties waited for final judgment (e.g. claim of immunity under 11th A)

Execution of Search Warrants

Timing: A search warrant must be executed without unreasonable delay after it is issued Knock and Announce Requirement: Police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord. >> EXCEPTION: K&A is not required if officers have RS that announcing their presence would be dangerous, futile, or would inhibit the investigation Scope of Search: Police can seize evidence of criminal activity they discover, even if not included in the warrant. Basis is Plain View exception to search warrants. Police CAN detain people found on the search premises, but police CANNOT search detained persons unless their are specifically named in the warrant or a valid warrantless exception exists

Ripeness & Mootness

To be justiciable in federal court, a case must not contain a ripe claim and a live controversy (i.e. it cannot be moot) Ripeness--P not entitled to review of a law before it is enforced * I.e. Court will not hear a case unless P has been harmed or suffers an immediate threat of harm Tip: Request for Declaratory Judgment triggers a Ripeness issue Mootness--A live controversy must exists at all stages of review * If circumstances causing P's asserted harm cease to exist after P files suit, the case must be dismissed as moot EXCEPTIONS: 1) Wrongs capable of repetition but evading review >> Arises when injury ceases before complete litigation of the claim, but P can reasonably expect to be subject to the same harm in the future >> E.g. A disabled bar examinee seeks injunction b/c of denial of accommodations and can't take the exam b/c it occurs before his case is heard; not moot b/c he will need to take the bar exam again 2) Voluntary Cessation by D--D has ceased the acts giving rise to P's suit, but can (legally) resume them at any time 3) Class Action Law Suits--Only one member of the class must have an ongoing injury

Constitutional Limits on Personal Jurisdiction

To be subject to PJ, D must have such minimum contacts with the forum state that exercising jx does not offend traditional notions of fair play and and substantial justice

Public School Searches

To conduct a search at a public school, school officials must have reasonable grounds the search is necessary (less burdensome than PC). A school search is reasonable if: 1) Search offers a moderate change of finding evidence of wrongdoing; 2) Procedure for searching is reasonably related to objectives of the search; AND 3) Search is not excessively intrusive Drug Tests: Random urine tests are permitted for public school students participating in extracurricular activities

Automobile Stops

To stop or pull over a vehicle, police must have reasonable suspicion that the law has been violated. Pretexutal stops, stops with an ulterior motive, are OK if police have reasonable suspicion of any legal violation Accompanying Searches: During an automobile stop, police may search: 1) Passengers and passenger compartments (but not the trunk) if officer reasonably believes weapons may be present >> Police CAN order passengers out of the vehicle 2) Any open containers that could reasonably contain evidence supporting the reasonable suspicion for the stop >> Does NOT include closed, locked containers 3) Entire car MAY be searched if probable cause arises pursuant to the automobile search exception

Nuisance define

Tortious invasion of either public or private property rights. Note- Nuisance is a harm caused by tort, not a tort itself.

In torts, what is the difference between traditional joint and several liability, and comparative contribution joint and several liability?

Traditional requires all defendants to pay an equal share regardless of how much of the fault was theirs. Comparative contribution bases recovery on the percentage of fault.

What happens if an unknown trespasser walks into a non obvious manmade deathtrap condition on land?

Trespasser wins.

Defenses to Defamation: Truth

Truth is a complete defense to a defamation claim

What's something to look out for if you see a statement like "It was my fault" offered as a statement against interest?

Unavailability of declarant. This is required.

Impleader (Rule 14(a)))

Under Rule 14(a), a defendant can join a non-party (third-party defendant) who is or may be liable to defendant for all or part of the claim against the original plaintiff. An impleader claim allows defendant to assert claims for indemnity or contribution against a third-party defendant for the claim the defendant is defending. Court must have PJ over impleaded party, generally the court will have supplemental jx A defendant has right to implead a third-party defendant within 14 days after serving answer by filing a third-party complaint against the third-party. After 14 days, defendant must get permission from the court Once a third-party defendant is joined, they may make claims of her own against other parties as long as SMJ exists over EACH CLAIM (usually exists through supplemental jx). The original plaintiff may assert claims agains the third-party defendant arising from the same T/O as plaintiff's original claim against the original defendant

Amending Pleadings (Rule 15)

Under Rule 15, parties may amend their pleadings once as a matter of course. Plaintiff can amend once with 21 days after defendant serves responsive pleadings or Rule 12 motion. Defendant has the right to amend once within 21 days of serving his answer. If there is not right to amend, the party may seek written consent of the adverse party or leave of court. Leave of court must be sought through a motion, it will be granted if justice so requires. The court looks at the following factors: (1) delay that will be caused, (2) potential prejudice to the parties, and (3) futility of amendment. Variance of Pleadings--If the evidence at trial doest not match the pleadings and the opposing party does not object and amendment is allowed to ensure that the pleadings match what was actually tried. If the opposing party objects, the evidence is inadmissible because it is at "variance with the pleadings."

Conferences (Rule 16)

Under Rule 16 (in conjunction with Rule 26), party representatives must meet and confer with each other and/or the court at various times throughout the proceeding Mandatory Meet & Confer: Parties must meet at least 21 days before the scheduling conference to: (1) discuss claims, defenses, and settlement and (2) to develop a plan for discovery. A written discovery plan must be presented to the court within 14 days of the meet & confer Scheduling Conference: A judge may hold a scheduling conference, at or after when she issues a scheduling order setting deadlines for filings of pleadings, joinder, amendments, and discovery deadlines Pre-Trial Conference: A pre-trial conference is held before the court and is held as needed to move the case forward and encourage settlement. A final pre-trail conference may be set by the judge to finalize issues to be resolved at trial and evidence to be presented. Issues generally not included in the pre-trial conference order are usually excluded at trial

Compulsory Joinder (Rule 19)

Under Rule 19, certain non-parties (absentees) may be forced to join a case if they are deemed necessary parties. Absentees are necessary when EITHER: (1) Without the absentee, the court cannot grant complete relief (worried about multiple suits) (2) OR The absentee has a legal interest that may be harmed if he is not joined****MOST LIKELY ON BAR*** (3) OR Absentee has an interest that create a risk of multiple or inconsistent rulings and obligations An absentee's joinder is feasible if: (1) There is PJ over the absentee (2) AND Joining the absentee will not destroy diversity If a necessary party CANNOT be joined, the court must decide whether the party is so indispensable that they should either (1) proceed without the absentee or (2) dismiss the entire case. In order to make this decision looks to the following factors: (1) Is there an alternative forum available? (maybe some state court) (2) What is the actual likelihood of harm to the parties or others if the case goes forward? (3) Can the court shape relief to avoid prejudice?

Intervention (Rule 24)

Under Rule 24, a non-party may seek to join (i.e. intervene) in an already pending suit, either as a plaintiff or defendant. The court may realign the her if it thinks she came on the "wrong" side. There are two types of intervention: (1) intervention as of right and (2) permissive intervention. Intervention as of right exists when the non-party: (1) Interest will be harmed if not joined and no existing party will adequately represent that interest (2) OR The non-party has an unconditional statutory right Permissive intervention is allowed in the court's discretion if the non-party has at least one common question of law with the underlying action. The court must consider whether intervention will unduly delay or prejudice to the parties NOTE: Intervention vs. Compulsory Joinder (Rule 19) Compulsory joinder forces an absentee into a suit, it is very narrow the absentee must be necessary for the court to force absentee into the case. Intervention lets the absentee join the suit voluntarily, more lenient.

Voluntary Dismissal (FRCP 41)

Under Rule 41, plaintiff may voluntarily dismiss her case, either with or without court approval. Dismissal WITHOUT leave of court is allowed before defendant serves answer or motion for summary judgment. Plaintiff voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who have appeared. Dismissal is without prejudice, meaning plaintiff can bring claims again. * Dismissal may be with prejudice of plaintiff previously filed and dismissed the same claims Dismissal WITH leave of court is required if there has been an answer, motion or prior dismissal. The court has discretion to grant dismissal on terms and conditions it deems proper. Dismissal is without prejudice unless court states otherwise. * If defendant has filed a counterclaim, plaintiff cannot voluntarily dismiss without defendant's consent.

Motion for a New Trial (FRCP 50)

Under Rule 50, either party may file a motion for a new trial if judgment was entered but serious errors occurred at trial. It must be filed within 28 days after entry of judgment. Grounds for a motion for a new trial include: (1) Serious error that makes judgment unfair (prejudicial) e.g. judge mistakes law, gives wrong jury instructions (2) Prejudicial misconduct of a party, attorney, juror, etc. e.g. jury considered evidence excluded at trial (3) Jury erred in reaching verdict given evidence before it (4) Newly discovered evidence (5) Excessive or inadequate damages. Court can order new trial or offer remittitur if convinced award is too high. Remittitur means if the jury award an amount that is so high it shocks the conscience, court can order a new trial or offer plaintiff a choice of taking a lesser figure set by the court

Default & Default Judgment (FRCP 55)

Under Rule 55, default judgment against defendant may be entered when defendant fails to plead or otherwise defend a properly served complaint. Plaintiff files a motion for default judgment against defendant. The clerk entered default on docket if plaintiff shows defendant failed to respond within 21 days of being served (60 days if service was waived). A default judgment may be entered by COURT CLERK if: 1) Defendant has not responded at all 2) Claim is for money damages 3) Plaintiff gives an affidavit of sum owed; 4) AND Defendant is not a minor or incompetent A default judgment may be entered by the JUDGE if the above elements are not met. Judge will hold a hearing on provable damages Default does not entitle plaintiff to recovery; clerk or judge must enter judgment of default. Recovery is limited to amount demanded in complaint. A court may SET ASIDE a default judgment for good cause shown within 1 year. This is usually satisfied if defendant can show some excusable neglect, mistake or fraud

Motion for Summary Judgment (FRCP 56)

Under Rule 56, EITHER party may file a motion for summary judgment (MSJ) asking court to enter judgment. The motion is based on on pleadings and evidence submitted and is examined in the light most favorable to the nonmoving party. Court can look at the whole record of admissible evidence (e.g. affidavits, verified pleadings, discovery materials, etc.). Evidence must be admissible to be considered. The MOVING party must show: 1) There is not genuine dispute of material fact 2) Moving party is entitled to judgment as a matter of law, i.e. that not reasonable person could find for the nonmoving party If a party moves for summary judgment, the burden shifts to the nonmoving party to sow that a triable issue exists. Court can grant PARTIAl summary judgment on only certain claims

Motion to Set Aside Judgment or Order (FRCP 60)

Under Rule 60, a court may relieve a party from judgment or a court order if any of the following issues arise: (1) Mistake, inadvertence, or excusable neglect * Motion may be brought any time that is reasonable within 1 year of entry of judgment or order (2) New evidence undiscoverable at time of trial * Evidence that could not have been discovered with due diligence in time for a new motion * Motion may be brought any time that is reasonable within 1 year of entry of judgment or order (3) Fraud, misrepresentation, or misconduct by opposing party * Motion may be brought any time that is reasonable within 1 year of entry of judgment or order (4) Judgment is Void * Motion must be brought within a reasonable time (5) Judgment has been satisfied or discharged * Motion must be brought within a reasonable time (6) Any other reason that justifies relief * Catchall used in extraordinary circumstances * Motion must be brought within a reasonable time

10th A Limitations on Congressional Power

Under the 10th A, all powers not granted to the federal govt, nor prohibited to the states, are reserved to the states * Limits Congress' ability to regulate and/or tax states alone >> EXCEPTION: Civil rights; Congress may restrict state activities that violate civil liberties * Regulations applying to both public and private sector are usually valid >> E.g. Fed minimun wage laws are applicable to state/local govt as well as private sector Conditional Grants--Congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants >> E.g. Fed highway funds conditioned on states maintaining minimum drinking age of 21 Requirements: 1) Condition must be expressly stated 2) Condition must relate to the purpose of the law at issue (low burden to satisfy) 3) Condition may not be unduly coercive

Supremacy Clause

Under the Supremacy Clause, federal laws trump conflicting state and local laws Express Preemption--If a federal law provides that it is the exclusive authority in a given area, it preempts state and local laws in the area * However, preemption provisions are narrowly construed Implied Preemption--If a federal law is silent on preemption, courts will presume a conflicting state law is valid, UNLESS Congress clearly intended to supered. Implied preemption usually occurs in 3 situations: 1) Mutual exclusivity: Federal and state laws are mutually exclusive (i.e. complying with both is impossible) >> States can set stricter requirements if compliance with both federal and state law is possible 2) State law impedes a federal objective 3) Congress evidences a clear intent to legislate exclusively and/or preempt state law (e.g. immigration & bankruptcy law)

Non-Monetary Remedies - Reclamation

Under the UCC, an unpaid seller may reclaim goods from a buyer if: (1) the buyer is insolvent at time of delivery, (2) seller demands return of goods within 10 days of delivery, and (3) buyer still has possession of goods.

How can a state legislation that is similar to a federal regulation but does not technically contradict the federal regulation fail, if not under negative commerce clause?

Under the supremacy clause, especially if the state regulates areas that the federal government did not regulate - the presumption being that maybe congress wanted the free market to control that.

Requirements for a Valid Search Warrant

Unless an exception applies, govt. must have a properly executed warrant to conduct a search. A valid warrant is (1) based on probable cause, (2) precise on its face, and (3) is issued by a neutral and detached magistrate (1) Based on Probable Cause: Usually a police affidavit demonstrating PC that the search or seizure will produce evidence. Affidavits must contain: a) Facts showing PC b) May include information from anonymous sources i.e. informants c) If based on false information, warrant is invalid (2) Precise on its Face: Warrant must describe with reasonable precisions the place to be searched and/or items to be seized (3) Issued by a Neutral and Detached Magistrate: If this requirement is violated evidence seized cannot be admitted under the good faith reliance exception Almost anywhere may be searched pursuant to a valid warrant. Warrants can be issued for any location where the govt. has probable cause to believe there is evidence to be seized

Nuisance-Public

Unreasonable interference with health, safety or property rights of the community at large. Recovery is only available to a private party if she suffered unique damage not suffered by the public at large. government usually brings public nuisance suits

When is a revocation effective?

Upon the offeree's receipt

What counts as substantial performance

Usually half way complete

Venue

Venue involves the determination of the judicial district(s) in which a Plaintiff may bring suit. A plaintiff may lay venue in any district where: 1) ALL defendant's reside 2) OR Where a substantial part of the claim arose or in which a substantive part of the property that is subject to the action is situated 3) OR If all defendant's reside in different districts of the forums state venue is proper where any defendant resides (e.g. D-1 (N.D. Cal), D-2 (E.D. Cal) -- Can lay venue in either) Residency for persons is determined by domicile Residency for corporation is all districts in which it was subject to PJ when the action commenced Residency for unincorporated associations is determined by the location of the association itself, not its individual members

Contracts - Void/Voidable/Unenforceable

Void: (R) A contract that never had any legal effect Voidable: (R) One or both parties may elect to void the contract Unenforceable: (R) Otherwise valid contract that is unenforceable because a defense applies.

Capacity Defense: Voluntary Intoxication

Voluntary intoxication arises when a Defendant chooses to consume an intoxicant (alcoholics and addicts are voluntary intoxicated.) Voluntary intoxication is a defense to SPECIFIC intent crimes. Voluntary intoxication is NOT available if Defendant becomes intoxicated in order to commit the crime i.e. liquid courage

Crimes Against Person: Voluntary Manslaughter

Voluntary manslaughter is a killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense. Adequate provocation requires: 1) Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control 2) Defendant was in fact provoked i.e. Defendant actually lost control 3) There was insufficient time for an ordinary person to cool off between the provocation and the killing >> Very subjective, fact based 4) Defendant did not cool off between provocation and the killing NOTE: Adequate provocation is NOT a defense to murder, but it can be a mitigating factor that reduces a murder charge to voluntary manslaughter Imperfect Self-Defense: If Defendant murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either: 1) Defendant initiated the altercation that required self-defense, OR 2) Defendant unreasonably believed deadly force was necessary

Strict Liability :Abnormally Dangerous Conditions: take note:

Watch for fact patterns where abnormally dangerous conditions exist but do not cause P's injury. Example truck carrying toxic wast in sealed containers which fall and crash into P's car but do not spill. No strict liability b/c the abnormally dangerous nature of the containers did not cause P's injury

What is the time period for the holdover tenant problem getting a new implied lease?

Whatever the time period was on the original lease, but with the new rate. If it's a yearly lease paid month to month, then the new lease is a yearly lease at the new amount per month.

negligence: Proximate cause-indirect/intervening causes

Where contributing acts occur between D's conduct and P's injuries. D's is usually liable if injury could have possibly resulted even without the intervening forces.

To determine whether property is truly lost, the most important thing to consider is what?

Where it was found

What should you look out for if you see a suretyship statute of frauds problem?

Whether or not the promise is a primary promise itself or merely collateral to a primary promise. A suretyship is never the primary promise itself, but rather collateral to insure another's promise.

What should you look for if you see a statement under belief of impending death?

Whether the statement even involves the cause of her own death, and also whether the victim actually knew whether it was true or not. Speculation still doesn't fly, even if you're dying.

Animal conduct strict liability

Wild Animals-owners are strictly liable to licensees and invitees for unprovoked injuries caused by their wild animals. Domestic animals- no strict liability unless owners know of their animal's unusually dangerous propensities (dog previously bit) Trespassers cannot recover.

What is the difference between a sublease and an assignment with respect to rights of landlords/tenants?

With subleases, the tenant is not personally liable to the landlord for unpaid money. With assignments, the assignee stands in the shoes of the original tenant.

Consent to Search

With valid consent, police may search anything. Valid consent requires: (1) that it be voluntarily and intelligently made, and (2) the person giving consent has authority to consent. (1) Voluntarily and Intelligently Made: Police CANNOT lie or decide to obtain consent. Police have NO obligation to inform suspects that they have a right to refuse consent (2) Person Giving Consent has Authority to Consent: Authority to consent must be reasonably apparent Scope of Consent: Consent can be LIMITED by consenting party. Violation of scope of consent renders the entire search non-consenting Third-Party Consent: Third-party consent is allowed if there is authority to consent. Where multiple people have property rights (e.g. ownership, authorized use, occupancy), any single one can consent to the search of any area where they have authority to consent. A resident's right to consent trumps a non-resident (e.g. if both tenant and landlord are present, the tenant's refusal trumps the landlord's consent). Scope of consent is dictated by the person present with highest authority to consent. Refusal trumps consent, there is no consent if two persons with equal right to possession disagree on consent

Terms/Definitions for Benefit/Burden anlysis

Writing - (R) Original covenant was in writing Intent - (R) Parties intended to bind successors in interest Touches and Concerns the land - (R) Covenant must affect parties' legal relations as landowners. Homeowners association fees satisfy this requirement. Horizontal privity - (R) Relationship between the covenanting parties Vertical privity - (R) Relationship between covenanting parties and their successors in interest. Notice - (R) Successor in interest had notice of the covenant when she took her interest - actual, constructive, or inquiry.

May a plaintiff in federal court amend his complaint to include totally unrelated claims?

Yes!

Are Gratuitous assignments revocable?

Yes, Gratuitous assignments are revocable unless: (1) obligor has already performed, (2) a tangible claim or writing is delivered to assignee, or (3) detrimental reliance by the assignee.

Assume a state statute prevents aliens from purchasing property within the state, and a landowner who was going to sell to a resident alien brings suit, but the alien does not join him in this action. Does the landowner have standing?

Yes, a third party may assert the rights of the aggrieved party

Can anticipatory repudiation be revoked?

Yes, anticipatory repudiation can be reversed or retracted if the non-repudiating party has not materially changed his position

Do statements imparting gifts from a decedent survive the dead man's statute?

Yes, as a statement of legally operative fact.

Is abstaining from filing a worthless legal claim valid consideration?

Yes, as long as there is a good faith belief that the claim is valid. (remember vanderbilt)

Can recent felony convictions for violent crimes be rehabilitated with reputation for truthfulness?

Yes, because the felony is recent, implying your witness is criminal scum.

In sales of goods, can the implied warranty of merchantability be disclaimed?

Yes, but it must be part of the offer and acceptance process, not a general disclaimer, or modification.

Can you get specific performance under the UCC?

Yes, but only for rare things or items in short supply, otherwise look to whomever else you can buy it from, and measure damages on that.

If a common-question class plaintiff rejects the option to "opt-out" the first time around, can they change their mind and opt out later?

Yes, but only with court permission.

Can a grantee from a life tenant obtain title through adverse possession against the holder of a reverter/remainderman interest?

Yes, but the clock doesn't start running until the life tenant dies.

Can you recover damages for material breach?

Yes, damages are recovered for any breach

In a service contract, can performance satisfy SOF?

Yes, full performance satisfies SOF

Are documents prepared by non lawyers protected by the work product doctrine too?

Yes, if made in anticipation of litigation.

Can agreements - say for example to repair shared parts of land be enforced against subsequent purchasers?

Yes, if the agreement is recorded.

Do UCC contracts allow for curing in non-installment contracts?

Yes, if the defect is minor.

Can a third party of the same state as a plaintiff in a diversity case assert a counterclaim, even if they are not diverse?

Yes, if you can get supplemental jurisdiction.

Can an offer that requires acceptance by promise be accepted by performance?

Yes, if: 1. the offeree begins to perform and 2. the offeror learns that the offeree has started performance and accepts

If one party has substantially performed, is the other party obligated to complete performance?

Yes, less than perfect performance by one party does not excuse the other party from his obligation. **although the other party may seek money damages for the difference between the performance rendered and the performance expected

In a bilateral contract, do you have to give notice of acceptance?

Yes, offeree must make offeror aware of acceptance

In a bilateral contract, is partial performance considered acceptance?

Yes, partial performance gives rise to acceptance

Assuming proper procedure is met, can a judge grant a new trial if he merely thinks that witnesses were unreliable?

Yes, screw what the jury thinks.

Are hotel rooms considered dwellings for the purposes of burglary?

Yes.

Does 5th amendment privilege against self incrimination apply in civil trials?

Yes.

Does the privileges and immunities clause's protection of out-of-staters extend to cities requiring contractors to use in-city labor?

Yes.

Do zoning permits for commercial/industrial use of land in an area serve as a defense for nuisance claims?

Yes. It makes the interference reasonable.

If you have a suretyship but no additional consideration other than what was given to the original creditor, is the contract valid?

Yes. No additional consideration needed.

What happens if you get unmarketable title to land but wait past closing?

You can't sue on marketability, but you can sue on covenants for quiet enjoyment and warranty if someone brings a quiet title action against you.

In questions requiring you to draw parcel shapes, what is one rule to remember?

You must be able to bring it back to the starting point.

What happens if you are buying land with bad title from a BFP who had no idea about prior interests on land in a notice/race notice jurisdiction?

You will be protected under the shelter rule, despite your lack of good faith.

Obscenity & Profanity Regulations

Zoning--Govt may use zoning to regulate obscenity-type speech or conduct if regulation is designed to combat secondary effects. Govt may seize assets of businesses violating obscenity laws >> E.g. An ordinance limiting strip clubs to a small city section can be upheld if designed to combat a drop in property values or rise in crime Pornography--Private possession is not punishable unless it involves child pornography * Child Pornography--May be punished because they underlying act is illegal (i.e. sex with minors) >> Child Pornography = Actual children are depicted >> Adults portraying children is not child pornography Profanity/Indecent Speech--Generally protected with two exceptions. Profane/indecent speech is punishable if: 1) Speech is aired over broadcast medial (not cable or internet) 2) Speech occurs in public schools

Defamation: Damages Consideration: Slander

_ a spoken defamatory statement- P must prove special damages unless the statement constitutes slander per se. Special damages- a specific economic loss.

Consideration

a bargained for legal detriment incurred by each party to a contract by promise, forebearance, or performance

under the CEC medical diagnosis or treatment is limited to?

a child less that 12 describing neglect or abuse

Acceptance

a clear expression of assent to the terms of the offer

Ratification

a contract can be enforced against an infant at the time of contract formation if she has since gained capacity and retained the benefits of the contract

CA use of capper and runners is?

a crime - somebody you send out to solicit business

Defamation: Damages Consideration: Slander Per Se

a defamatory statement the either: 1. Concerns and adversely reflects on P's business or professional reputation 2. Claims that P has a loathsome disease 3. Claims that P committed a crime of moral turpitude or imputes a woman's chastity.

liability for passive participants and exeptions?

a director is assumed to have concurred with a board action unless he dissents in writing in corp records exceptions: 1. absent director 2. good faith reliance on independent sources

Negligence: Duty of Care - Intended economic beneficiaries

a duty of care is owed to third-party beneficiaries if their harm is foreseeable.

Acceptance By Prompt Shipment

a merchant may accept an offer to buy goods by either (1) providing a promise to ship goods (usually by written confirmation) OR (2) promptly shipping conforming goods

Rescission

a mutual cancellation of a contract that arises if some performance obligation remains for each party and they both agree to rescind the contract; recission is essentially a new contract that excuses further performance by both parties on the old contract's obligations must be supported by consideration, unless contract is governed the UCC.

What if the accord is not satisfied?

a party may sue on either the original obligation or the accord

Right to disaffirm

a person who lacked capacity to contract may disaffirm the contract rendering it void

Option Contract

a promise to keep an offer open in exchange for consideration

Pre-existing legal duty

a promise to perform a pre-existing legal duty is not valid consideration unless there is a new written promise to fulfill a debt obligation

Nuisance- Private

a substantial, unreasonable interference with another individual's use or enjoyment of his/herproperty. 1. Substantial interference- must be offensive, annoying or inconvenient to the average person in the community. 2. Interference is not substantial if P is hypersensitive or using property for a specialized, abnormal purpose. 3. Unreasonable interference-severity of P's injury must outweigh the utility of D's conduct

Modification

a substitute agreement where parties agree to accept a new agreement in satisfaction of the existing contract

Common Law Mirror Image Rule

acceptance must mirror the terms of the offer

UCC Acceptance w/ Additional or Different Terms

acceptance that proposes additional or different terms is valid unless acceptance expressly requires assent to the additional or different terms

Matters of public concern requirements

actual malice and reckless disregard for the truth of matter publicized-same as constitutional considerations

hotchpot?

add all shares and divide my number of takers

withdrawn guilty pleas?

admissible for impeachment purposes - not admissible under the FRE

Conditions

agreed upon limitations on performance. conditions make an obligation to perform contingent on the occurrence of some specific event or condition.

Duty to mitigate

all parties must mitigate damages, a party may not recover for avoidable damages. D bears the burden of showing P's failure to mitigate

general presumption?

all property acquired during marriage is presumed CP, rebuttable by tracing

Community property?

all property and debts acquired during the marriage are considered community property unless excepted.

Separate Property and elements?

all property or debts acquired before marriage, after permanent separation, by gift or by inheritance, and all rents, incomes and profits that derive from these sources. 1. gift 2. devise 3. after permanent separation 4. after death

trespass to chattel?

all you get is lost value cost to repair.

False Imprisonment-Definition

an act or failure to act by D, resulting in Ps restraint or confinement to a bounded area.

Accord

an agreement to accept alternative performance in satisfaction of the existing obligation

Formation Defenses: Duress

an improper threat that deprives a party fro making a meaningful choice to contract **contracts induced by duress or coercion are voidable

UCC Firm Offer

an irrevocable offer where: 1. the offeror is a merchant (or any business person) makes 2. Assurances in writing that offer will remain open 3. For reasonable time but no more than 90 days 4. No consideration needed to keep offer open

Offer

an offer is an objective manifestation of a present intent to contract

Requirements to excuse performance

an unforeseen event must make completing performance either: (1) impossible: performance is objectively impossible (2) commercially impracticable: performance is only possible with extreme and unreasonable difficulty or expense

When can an offer be revoked?

anytime before the offer is accepted

5th amendment?

applicable to the states via the 14th amendment protects against compelled testimonial self-incrimination - requires govt action

Fourth Amendment?

applicable to the states via the 14th amendment, protects against unreasonable searches, seizures, and arrests. Warrantless search is per se invalid.

6th amendment right to counsel?

applies to all felonies and any sentences that may result in actual loss of liberty.

dependent relative revocation?

applies where T physically revokes his will on the mistaken belief that another disposition would be effective and but for the mistake T would have never revoked. - this means that although there was an act, the mistake effectively negates the intent to revoke. -- the issue is T's intent

unavailability other category CEC only?

apply to civil, and to non-testimonial hearsay in criminal cases 1. has (or not) mad (or revoked) will 2. dead declarant re: gang-related crimes 3. past state of mind, emotion, sensation 4. statement concerning boundary of land 5. children less than 12 in child abuse cases 6. physical abuse

Advertisements

are not offers unless they are: 1. highly specific about the quantity and 2. clearly indicate who may accept

Restitution Damages

arise under quasi-contracts. It is applied if there is no enforceable contract and a party has been unjustly enriched, and awards the value based on the benefit wrongfully conferred.

Risk of Loss

arises if goods are lost or destroyed by no fault of either party after contract formation but before buyer receives the goods

Joint and several liability

arises if the acts of two or more Ds combine to produce a single indivisible injury. Each D is jointly and severally liable for the entire harm if his actions were a factor in bringing about P's injury Satisfaction- if P recovers fully from one D, she may not recover more from a jointly liable D

Anticipatory Repudiation

arises when one party to a contract (1) makes a clear and unambiguous statement or conduct (2) prior to when performance is due (3) which indicates that he will not perform

Common Law Limitations on Assignments

assignments that substantially change the duties of the obligor are barred, such as assignments of rights to performance.

Strict Liability: Prima Facie Case-Defenses

assumption of risk, comparative negligence.

Installment Contract

authorizes or requires delivery of goods in seperate lots

Defense of Property-availability

available to prevent tort against property 1. Unavailable if initial actor had a privilege to enter land (recapturing chattel) 2. Reasonable mistake only allowed as to whether an intrusion occurred, not whether privilege existed 3. D must request that interference stop before using force, unless doing so would be futile or dangerous.

When a gift is _______ to a donee, acceptance is presumed, but the donee can revoke the acceptance by ________

beneficial; an affirmative act

Creditor TPB

benefit is conferred based on debt owed by the promisee to the contract

Donee TPB

benefit is conferred gratuitously

defense to breach of duty of care? (3)

business judgment rule (BJR)- a court will not second guess a director if his decision is: 1. in good faith 2. informed 3. has a rational basis

Vicarious Liability-Tavernkeepers

businesses serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron

What if seller never arranges removal of the rejected goods?

buyer can return the goods to the seller, store the goods for the seller, or resell the goods on behalf of the seller

Negligent Infliction of Emotional Distress- bystander claims

bystanders may be able to recover for emotional distress resulting from D's negligence. see card 6

Negligence:Standard of Care- custom or usage in an industry

can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty

(warrant exceptions) SILA auto? (2)

car and containers only if reasonable to believe 1. D might access the vehicle at the time of the search 2. vehicle contains evidence of the offense

exchange rule?

change in form does not alterthe character of the property

exception to the asecertainable beneficiary rule?

charitable trust- requires a large number of unascertainable beneficiaries.

In a Unilateral Contract how do you accept by Performance?

complete performance required to accept an offer

Consideration Substitutes: UCC modifications to contracts

consideration is not necessary for good-faith written modifications to a contract governed by the UCC

Common Unforeseen Events: Death

contract obligations generally survive the death of a party unless the deceased party's obligations are non-delegable ex: unique personal services

How do you satisfy the Statute of Frauds?

contracts subject to the SOF require special proof of their existence and can be satisfied by: 1. Being in writing 2. Being signed by the party asserting the SOF defense 3. Contain the essential elements of the deal

(consideration for stock) amount and kinds? (3)

corp must recieve full value for its stock 1. par. - minimum issuance price 2. no par- no minimum issuance price 3. treasury stock- previously issued, has been reacquired (treat as par)

(sh distribution) funding?

corp. must be solvent to the extent that their assests exceed their liabilities and they can meet their current obligations

(QMP) general rule?

court must divide QMP the same way as QCP or CP at dissolution

Consideration Substitutes: reliance/estoppel

courts may enforce a promise if: 1. promisor reasonably expects reliance by promisee 2. promisee acts or refrains from acting such that his reliance is detrimental and 3. injustice will occur without enforcement of the promise

Formation Defenses: Unconscionability

courts may refuse to enforce all or part of a contract that is either: (1) procedurally unconscionable: usually involves an unfair surprise (ex: a new material term) (2) substantively unconscionable: usually involves oppressive terms which are often hidden

Constructive trust definition?

cout imposed obligation on D to convey specific property to P - equity creates a trust to compel D to re-convey title unjustly enriched)

exception to spendthrift trust? (4)

creditors can't reach res or spendthrift's trust interest until received, except 1. k's for necessaries 2. Alimony & child support 3. torts 4. government (taxes)

General damages?

damages must be caused by the breach, foreseeable, certain , and unavoidable/duty to mitigate.

third party creditors and transfers?

debt arises when contract is made, at time tort occurs, or obligation arises

(tort) nominal?

declaration of P's rights

(warrant exceptions) exigent circumstances/hot pursuit? (3)

delay would result in destruction/loss of evidence or danger to life and/or property 1. hot pursuit 2. imminent violence 3. destruction of evidence

In a sale of goods contract, what satisfies SOF?

delivery of the goods satisfies SOF

pour-over trust and elements? (3)

devise to the trust, terms of which are not set forth in the will 1. trust identified in T's will 2. terms of trust in written instrument other than the will 3. trust executed before or concurrently with the execution of T's will

(duty of loyalty) corporate opportunity doctrine?

directors and officers cannot usurp a corp. opportunity unless: 1. full disclosure and 2. board approves

duty of loyalty?

directors and officers must act in good faith in the best interests of the corp without regard to personal gain. - find and articulate a personal benefit

duty of due care?

directors and officers must act with reasonable skill and care that a reasonably prudent person would with respect to his own business.

indemnification?

directors entitled to reimbursement of expenses if used for corporate purposes unless: 1. corp barred- if liable to corp or held to have received an improper personal benefit

intestate succession?

divide per capita (equally) with right of representation

Partnership vicarious liability

each partner is vicariously liable for any other partner's torts committed within the scope of the partnership

Respondeat superior

employers are liable for torts committed by employees within the scope of their employment

Constructive trust elements?

enforced by power of contempt 1. D has title 2. acquisation of title is traceable to D's wrongdoing 3. unjust enrichment 4. no remedy at law

Reformation?

equitable remedies for scriveners' errors 1. equitable remedy to modify a written instrument to reflect the parties agreement 2. grounds mistake of fact/fraud 3. defenses - laches - sale to BFP w/o notice - ratification of a mistake by P - changes position in reliance on instrument

Parol Evidence Rule

evidence extrinsic (outside) to a written agreement is inadmissable to supplement or contradict the written agreement **applies if the writing is a complete integration

section 352?

evidence may be excluded if its probative value is substantially outweighed by undue consumption of time or if it creates substantial danger of unfair prejudice, confusing of the issues, or misleading the jury.

(exclusionary rule) fruit of poisonous tree doctrine?

excludes all evidence obtained or derived from illegal police act as tainted fruit.

Insecurity

excuse by insecurity arises if A gives B reasonable grounds for insecurity or uncertainty regarding whether A will perform under the contract

Effect of accord and satisfaction

excuses the original obligation

Putative marriage?

exists when one spouse has a good faith belief in the existence of a marriage.

Negligence:Standard of Care-Professionals

expected to act with the care of an average member of the profession in good standing in similar communities. Specialists (neurosurgeons) are held to a national standard of care

Ambiguity?

extrinsic okay if words subject to more than one interpretation.

(tort punitive) consider reprehensibility? (wrongfulness of conduct)? (5)

factors 1. physical harm vs economic 2. indifference/reckless disregard for health/safety 3. financial vulnerability of injured person 4. repeated action vs. isolated incident 5. intentional malice/trickery/deceity v. accident

Condition vs Promise

failure of a promise leads to a breach while failure of a condition relieves a party of his performance obligation

in CA a declarant can not refuse despite a court order but CA does allow the declarant to be unavailable for?

fear

simultaneous death (intestate succession)?

for intestate sucession, when passage of title to property depends on priority of death and there is insufficient evidence (clear and convincing evidence) that persons have died other than simultaneously, property of each person passes as if he survivded. - i.e. 120 hour rule you must survive by 120 hours or be treated as predeceased for intestate succession purposes)

Consequential Damages

foreseeable losses indirectly resulting from the breach, and are recoverable if: (1) damage was foreseeable result of the breach, and (2) when the contract was formed, the breaching party had reason to know the non-breaching party would suffer special, unpreventable, or unexpected damages. Under the UCC, consequential damages are only available to the buyer.

constructive? (2)

fraud 1. court imposes to prevent unjust enrichment (court compels D wrongfully holding title to transfer title to prevent unjust enrichment) 2. BFP cuts off equitable remedies- trustee holds consideration in trust for beneficiaries

alienability?

freely alienable, exceptions 1. discretionary 2. spendthrift 3. support

sh liability for corp debt?

general rule shareholder not liable for corp debt unless: piercing the corp veil 1. alter ego 2. undercapitalization 3. fraud

Common Law

governs contracts for services and real estate

UCC Article 2

governs contracts for the sale of goods

Negligence:Standard of Care-& Innkeepers

held to the utmost standard. Liable for even slight negligence to passengers & guests

Excuse of Condition

if a condition exists it must be strictly complied with but substantial performance of the condition may suffice if it fulfills the conditions purpose

Consideration Substitutes: past debts

if a debt is barred by the statute if limitations, a new written promise to fulfill the debt is enforceable without consideration but only according to the new terms.

Time is of the Essence Clause

if a timely performance is essential, failure to perform by that time is a material breach. Arises if one party indicates as a term of the contract that performance by a given date is essential.

Unauthorized resale of goods

if an owner leaves goods with a person who deals in goods of that kind and that person wrongfully sells the goods to a third party, the owner cannot recover from the third party. The owner may have a claim against the seller for conversion

Imputed disqualification?

if one cannot, then none can

(exclusionary rule exceptions) dissipation of taint?

if police commit an illegal act, then back off get PC, then go back it is ok.

(warrant exceptions) automobile?`

if police have probable cause they can search whole car and trunk and open any packages that might reasonably contain the item

Effect of Anticipatory Repudiation

if repudiation occurs the non-repudiating party's duty to perform is excused **he can treat the contract as breached and sue for damages

Imperfect Tender

if the seller's performance is not perfect buyer can either: (1) retain goods delivered and sue for damages or (2) reject some or all goods and sue for damages

(exclusionary rule exceptions) independent source rule?

illegal act nullified because of an independent source

Proposition 8?

in 1982 California voters passed proposition 8 which ameded the California constitution to include "The Right to Truth in Evidence" provision, which guranteed that no relevant evidence would be excluded in a criminal proceeding, unless barred by a few specific provisions in the California Evidence Code (CEC).

(specific performance) inadequate legal remedy?

inability to cover 1. damages to small or speculative 2. multiplicty of suit 3. irreparable injury 4. unique chattel (e.g. land)

Formation Defenses: Misrepresentation/Fraud

includes false assertions, concealment, or misstatements about material facts before contract formation **contract will be voidable if A induces B into a contract by misrepresentation and B relies on that misrepresentation.

6th amendment defenses to bring the evidence in despite a violation?

independent source for in court-ID, such as ample opportunity to observe at scene of crime

incapacity

infants and mentally incompetent persons lack the capacity to contract

Infant Liability for necessities

infants are legally obligated to pay for necessities ex: food, clothes, medical care ***liability is based in quasi-k so infant cannot be sued for breach (b/c there's no enforceable k)

anti-lapse and elements?

inheritance by descendants of pre-deacesed devisee/legatee 1. devisee is either blood kindred of T, or relative of T's current or former spouse 2. leaves issue

anti-lapse?

inheritance by descendants of pre-deceased devisee/legatee if: 1. transferee is either- blood kindred to testator, or relative if T's current or former spouse 2. transferee leaves issue

tipping?

insider gives tip of inside info to someone who trades on the basis of the inside info

(fraud) affirmative misrepresentation and elements? (6)

insiders who trade on the basis of affirmative misrep to trading partners are liable for CL fraud 1. material misrep 2. scienter- knew it was false of acted with reckless disregard for the truth 3. intent to induce reliance on the misrep 4. justifiable reliance 5. causation 6. damages

Form of title is not conclusive, interest is key. Title in one spouse alone is?

insufficient without more to overcome the general presumption.

(CP) debts acquired during the marriage assumed CP unless?

intent of the lender was to hold SP liable - always raise this issue when either spouse borrows

Respondiat superior for intentional torts

intentional torts usually outside the scope unless: 1. Job requires use of force (bouncers) 2. job entails creating friction ( bail bondsman) 3. The intentional tort is done to further the employer's goals (Physically breaking up fight in store)

Intoxication

intoxicated persons may lack capacity to contract is the other party knows or has reason to know of the intoxication

misappropriation theory? (3)

it is a breach of a fiduciary duty for anyone to misappropriate non-public information when: 1. D has a confidential relationship or owes a duty to the source and 2. D purchases or sales securities based on the information 3. D knowingly passes on the improper information

(duty of loyalty) competing ventures?

it is a breach of the duty of loyalty for a director to compete directly with the corp - e.g. interlocking diretor, director of two competing corps

CA- Can't represent a client you have had sex with if?

it will impair your professional judgment - always conclude it will impair professional judgment

If someone records a private video of you naked (with your consent so long as it is to just to be between you two) and then they turn around and start giving it out to their buddies, is that intrusion into private seclusion, false light, or misappropriation of likeness?

it's actually intrusion into private seclusion, because there's no falsity, and misappropriation requires commercial use, not simply giving.

post-incorporation agreements?

k laws

Ejectment?

legal remedy to restore possession of property from which P was wrongfully ousted

Equitable lien and elements? (5)

lien secured on D's property to secure payment of debt owed to prevent unjust enrichment 1. wrongdoer misappropriates D's assets (money or property) 2. D must have title 3. trace assets into improvements or acquisation of title to D's wrongdoing 4. D's retention of property creates unjust enrichment - effect preference over all unsecured creditors up to amount of P's money - use when property falls in value and get a deficiency judgment on the rest

Negligence: Duty of Care for owners & occupiers of land to Licensees & Invitees- scope of duty

limited by scope of the invitation/license. Owner's duty extends only to those areas where one is an invitee or licensee (store owner does not owe duty of care in employee-only area) Note police/fire fighters are considered licensees, but cannot recover for injuries suffered on the job.

Formation Defense: Illegality

look for an: (1) illegal subject matter: contract is unenforceable or (2) illegal purpose for the contract: if the subject matter is legal contract is enforceable only by the party who didn't know about the illegal purpose **legality is based on existing law at the time of the contract

Unilateral Contract: Start of Performance

makes the offer irrevocable for a reasonable time to complete performance (must go beyond mere preparation)

16b remedy?

match highest sale price to lowest purchase price for any 6 month period

Common Law Material Breach

material breaches by the other party excuse performance

Common Unforeseen Events: Damage or destruction of contract's subject matter or purpose

may excuse performance as long as performance has not been completed

Communication to an Identified Offeree

means that an offeree must: 1. know about the offer and 2. have the power to accept it

Implied Warranty of Mechantability

merchant selling goods automatically warrants goods are fit for their ordinary purpose

nuisance-potential remedies

money damages, injunctive relief

(warrant exceptions) consent? (3)

must be 1. voluntary 2. within intended scope 3. untainted by illegal detention/arrest

Law reform activities?

must disclose when client may be benefitted by decisions in which L participates

Expediting litigation + CA?

must make reasonable efforts to expedite CA- misdemeanor to willfully delay for own ends

BFP real property?

need knowledge and consent of both H and W for sale and lease greater than a year.

(fruad) nondisclosure? (2)

no CL duty to disclose by corp insider to an investor exceptions: 1. privity- face to face 2. special facts doctrine- those a reasonable investor would consider important in making an investment decision

UCC Modification

no consideration is required for good faith modifications

(third parties) Truthfulness?

no false statements/omissions unless 1.6

Meritorious claim?

no frivolous claims, must have a basis in law and fact

Newsworthiness exception

no liability for use of name or likeness for reporting news

Impartiality of tribunal?

no seeking to influence of judge or jurors

are statements made contemporaneous to an agreement allowed under parol evidence rule?

no!

Punitive? (3)

not available in contracts except: 1. bad faith insurance 2. bad faith employment contract breach 3. must be willful, malicious

witness competency presumption?

oath required except under 10 or cognitive impairment, then only promise to tell truth.

Judge/juror may be a witness unless?

objection, if objection, mistrial and new judge - fed does not allow judge or jurors to testify

Legal detriment

obligation to do or refrain from doing something one would not otherwise be obligated to do or refrain from doing ex: stop smoking for a million dollars

Delegation- Enforcement

obligee must accept performance from delegee obligee may sue delegator for non-performance by delegee obligee may only sue delegee if the delegee has assumed duties of the entire contract

Interference occurs with P's right of possession in tangible personal property (chattel) how?

occurs through 1.dispossession (depriving P of his possessory rights in chattel) 2.Trespass- minor interference or damage 3.Conversion- significant interference or damage that justifies D paying chattel's full value.

Objective Manifestation of Intent

offer must give offeree a reasonable expectation that the offeror is willing to enter into a K

Bilateral Contract

offer that is open as to the method of acceptance ex: i promise to pay you $100 if you promise to paint my house

omitted child? (3)

omitted/born or became known after the will gets an intestate share unless: 1. intentional (will must make evident) or 2. otherwise provided for T outside of wil or 3. substantially all goes to other parent and there is at least 1 child at execution

Voidable Contract

one party may elect to void the contract ex: making a k with a minor; minor can elect to void the k

gifts for consideration (BFP) Spouses have equal rights of managment and control as of 1975. Either spouse may act alone. They can deal with CP as his/her own except CP business where the other spouse is manager. However, it is a breach of fidiciary duties for?

one spouse to sell CP real property w/o the other spouse's knowledge and consent.

Incidental beneficiary

one who is not an intended beneficiary. Incidental beneficiary has no rights under the contract.

Unilateral Mistake

only one party is mistaken concerning underlying facts of the agreement unilateral mistake will not prevent contract formation except when non-mistaken party knows or should have known of the other party's mistake

Negligence: Duty of Care for owners & occupiers of land to trespassers

owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers. Same standard of care applies for owners and occupiers. Unknown or undiscovered trespassers-no duty owed

In a real estate contract, what satisfies SOF?

part performance by the buyer satisfies SOF if buyer does 2 of the 3: (1) full or partial payment (2) possession of the property (3) improvements in the property

Novation

parties agree to substitute a new party to perform. the original party is excused from performance and no longer has an contract obligations.

Complete Integration

parties must intend the writing to express their final agreement

(SP) life insurance proceeds?

payment for the last term of the policy controls, so if SP funds used, then policy is SP

Unforeseen Events

performance on a contract may be excused if an unforeseen event occurs after contract formation but before performance is finished

duties to prospective clients? (3)

person who discusses the possibility of forming a L/C relationship 1. shall not use or reveal info obtained from a prospective client 2. may not represent a client with interests materially adverse to the prospective client in same or related matter 3. if received info from prospective client that could be significantly harmful to him or her

SOF: Marriage Contracts

promises made in consideration of marriage

SOF: Executor promises

promises of executrors/administrators to personally answer for the debts of the decedent's estate

SOF: Guarantees/ Suretyship

promises to pay the debt of another

Quasi-community property?

property (wherever situated) acquired by a married couple in another jurisidiction that would have been CP if acquiring spouse was domiciled in CA.

Quasi-marital property?

property acquired during a void or voidable marriage which would have been CP or QCP if marriage was not void or voidable. - e.g. property acquired during a putative marriage

Miranda?

protects against custodial interrogation

(injunction balance hardships, depending on type of injunction) preliminary and elements? (4)

provisional remedy that requires notice and hearing, purpose is to maintain the status quo pending hearing. - P must show 1. likely to succeed on the merits 2. hardships weigh in P's favor (harm to P and harm to D) 3. injunctive relief necessary to main the status quo 4. Bond (if no TRO granted)

due care? (6)

prudent investor rule- must exercise care 1. maintain/preserve trust assets (no offset)(insurance) 2. marketability 3. keep trust productive 4. diversify 5. not to speculate 6. timely investments

Intrusion upon seclusion & Disclosure- disclosure requirements

public disclosure of P's private information. Disclosure must be: 1. highly offensive to a reasonable person- public activities that occur in public not objectionable 2. Publicized- made available to a public audience. Newsworthiness exception- no liability if private facts are newsworthy.

exoneration?

real property is transferred subject to mortgage/other lien without exoneration of the debt, even if the will directs that all debts are to be paid out of the estate.

Use of force-Recapture of chattels

reasonable force may be used to recapture chattel, but not deadly force or force sufficient to cause serious bodily harm

Detinue?

recovery of personal property acquired lawfully

(tort legal restitution) replevin? (5)

recovery of specific personal property acquired unlawfully, plus damages for lost use 1. file suit 2. post bond 3. sheriff seizes property 4. D entitled to notice/hearing 5. D can post bond

abatement

reduce in order 1. intestate property 2. residuary 3. general 4. demonstrative 5. specific - if more than one beneficiary in a category to be reduced, reduce pro rata

Detrimental Reliance by the Offeree

reliance must be reasonable

Rescission? (4)

rescind-undo the contract 1. grounds- mistake, fraud/misrepresentation, material breach 2. method- give notice/tender back any consideration 3. defenses - laches (must be delay that prejudied by D) - unclean hands

resulting? (5)

results back to settlor's estate 1. lack of trust elements 2. purpose accomplished & corpus not exhausted (failure of private express trust) 3. purpose cannot be accomplished 4. semi-secret 5. purchase money resulting trust

effect of divorce?

revokes will in disposition to ex-spouse and all powers

pre-emptive rights?

right of an existing sh to maintain her % of stock when new stock is issued for money - CL rule recoginizes such rights as a matter of law - modern majority rule allows corps to opt out of expressely stated

right of appraisal?

right of dissenting sh to force corp to buy his shares as FMV

(warrant exceptions) stop and frisk?

right to detain and question based on articuable, reasonable suspicion that criminal activity is afoot. - standard for stopping is reasonable suspicion - if belief might be armed then pat down

Defense to restitution?

sale to BFP w/o notice cuts of equitable remedies - creditors are not BFP's, also don't forget laches and unclean hands

Product Liability: based on Representation- elements

same as implied. 1. Warranty-existence of an implied warranty 2.Breach- product fails to live up to applicable warranty 3. Causation- actual and proximate 4. damages- personal, property and economic are all recoverable.

secondary evidence rule?

secondary evidence presumptively as admissible as original but excluded if: 1. genuine dispute over material terms and justice requires or 2. admission unfair -oral testimony not admissible to prove contents of a writing

Product Liability: misrepresentation of fact

seller liable for any misrepresentation made in the course of a sale if: 1. Seller made misrepresentation regarding a material fact concerning the quality or use of the goods 2. Seller intended to induce reliance by buyer 3. The misrepresentation induced justifiable reliance.

Notice of intent to cure

seller must give buyer reasonable notice and deliver conforming goods

Implied Warranty of Fitness for a Particular Purpose

seller warrants that goods are fit for buyers purpose if: (1) buyer has a particular purpose (2) buyer relies on seller to select suitable goods (3) seller has reason to know of buyers purpose AND (4) buyer relies on seller

Perfect Tender

seller's performance must be perfect with respect to the goods delivered and the manner of delivery

Acceptance w/ Additional Terms (Common Law)

serves as a rejection b/c common law requires the acceptance to mirror the terms of the offer

Intervivos trust and elements?

settlor transfers property during lifetime 1. present intent to transfer 2. if by declaration (settlor is trustee) no delivery required 3. SOF where property

piercing? (

sh generally not liable for corporation debt (but may be required to return improper dividend) 1. alter ego theory- failure to follow corp. formalities 2. inadequate capitalization- to meet prospective risks 3. fraud

sh derivative suits? (2)

sh sues to enforce corp. rights, can sue if: 1. corp. is harmed 2. O's or D's breach duty of loyalty, or care

(advertising) Communication of L's services?

shall not make false or misleading communication

Communication of fields of pratice and specialization?

shall not unless, name of certifying agency is clearly identified

(injunction balance the hardships depending on the type of injunction) TRO/temporary restraining order and elements? (4)

short term decree to maintain the status quo, usually no balancing 1. emergency (irreparable harm) 2. ex parte (on or from one side or party) 3. P must post bond 4. 10 day duration

Conversion

significant interference or damage that justifies paying chattel's full value Can become conversion under continuing trespass theory

Marital transmutation?

spouses may transmute property to each other without consideration.

Shopkeeper's privilege

store may detail suspected thief if: 1. reasonable cause to believe theft occurred 2. store details suspect for only reasonable period and for investigation only 3. Detention must be reasonable- non-deadly force allowed 4. Shopkeeper may be held liable for any harm caused by acts exceed the privilege.

No contest clause? (4)

strictly constured, will not apply if: 1. contested gift to drafter 2. forgery 3. revocation 4. claims of undue influence

L shall not have sexual relationship with client unless?

such relationship existed prior to L/C relationship

Chattel

tangible personal property (moveable)

Logical relevance?

tendency to prove or disprove any disputed fact of consequence - keep an eye out for stuff that is stipulated.

Rejection of Offer

terminates: 1. the offer and 2. the offeree's power of acceptance

Revocation of an Offer

terminates: 1. the offer and 2. the offeree's power of acceptance

Testamentary trust?

terms of the trust are in the will - delivery not required, effectuated on death

Satisfaction

the completion of the alternative performance

What if a party knows of the other party's misunderstanding but remains silent?

the contract will be enforced according to the unknowing party's understanding

Undue influence? (4)

the execution or revoaction of a will or part of a will is ineffective to to the extent that the execution or revocation was procured by duress, menace, fraud or undue influence. 1. execution of influence 2. improper purpose 3. over powers will of T 4. but for the influence, will would not have been executed

According to the mailbox rule, what happens when you send an acceptance and a rejection?

the first to arrive is controlling

Liability for republication?

the republisher of a defamatory statement is liable to the same extent as the original publisher

Negligence: Breach of Duty: Res ipsa loquitur

the very occurrence of the accident's causing P's injuries suggests negligent conduct. Arises if facts cannot establish breach of duty b/c circumstances surrounding event are unknown to P

revival definition?

theory allowing a revoked will to be probated because revoking will itself was revoked. - presumption against: first will is presumed revoked unless it is evident T intended it to take effect.

A lawyer cannot prepare and receive from a will unless?

they are related

standing/motion to suppres?

to challenge a motion to suppress one must have standing. to have standing one must have a reasonable expectation of privacy in the thing seized or area searched.

(injunction) property right?

today most courts protect both property and personal rights by injunction.

SOF: Real estate contracts that transfer interests in land

transfers of property interests including leases for terms greater than one year

ineffective resignation?

trustee liable for all losses until successor is appointed.

fairness (allocation rules) (2)

trustee must be fair to all beneficiaries 1. beneficiaries entitled to income 2. remaindermen (principal)

10b5? (6)

unlawful for any person to use an instrumentality of interstate commerce to employ any scheme to defraud in connection with the purchase and sale of securities 1. instrumentality 2. scheme to defraud 3. scienter 4. standing 5. reliance 6. remedies

fundamental changes in corp structure? (4)

unusual occurences so require: 1. resolution by the board 2. notice to all SH entitled to vote 3. approval by majority of SH entitled to vote

According to the mailbox rule, when are acceptances effective?

upon dispatch unless the offer says something different, then the offer controls.

According to the mailbox rule, when are offers effective?

upon receipt

According to the mailbox rule, when is a revocation effective?

upon receipt

According to the mailbox rule, when is acceptance effective w/ option contracts?

upon receipt

Appropriation

use of P's name or likeness for commercial purposes (promo or ads) without consent. Exception?

Negligence Per se ramifications

violation of the statue means P must only prove causation, not breach of duty. Compliance Does not automatically clear D of Liability

Gift to drafter? (2)

void unless 1. related 2. or disinterested lawyer- would disinterested lawyer view the situation and say this is ok?

(techniques) tracing rules? (4)

way to use equitable restitutionary remedy to prevent unjust enrichment 1. lowest intermediate balance 2. option rule- victim can follow her money wherever she chooses 3. victim gets proportionate share in constructive trust 4. hallets case- presume D used his money first

Predominant Purpose Rule

when a contract involves both goods and services whichever plays a bigger role dictates the contract

Lapse/anti lapse general rule?

when a devisee dies or is dead before T, gift to him lapses absent contrary statutory or testamentary provision.

lapse/anti-lapse?

when a transferee dies or is dead before transferor, gift to him lapses. absent a contrary statutory or testamentary provision

Accord & Satifaction

when both parties to an existing agreement to accept different performance in satisfaction of the existing obligation

Express Warranty

when seller makes promises or describes facts about the product or its use warranty will be breached if product falls short of the sellers promise or description **includes samples and models

Unenforceable Contract

when there is a valid contract but a formation defense applies

Misunderstanding

when there's ambiguity concerning terms of a contract, the contract is voidable if: (1) the parties use a material term reasonably susceptible to at least 2 different interpretations (2) each party attaches different meaning to the term (3) neither party knows or had reason to know about the other's interpretation

simultaneous death?

where T and beneficiary die simultaneously and it cannot be shown by clear and convincing evidence which survived the other, the court will presume that the beneficiary predeceased T

Negligence: Duty of Care for owners & occupiers of land to trespassers: Anticipated Trespassers

where owner has reason to believe of trespassers on land. Activities: owner has duty of reasonable care in carrying out activities on property Dangerous Conditions- owner has duty to make safe or warn of any known, concealed, man-made hazards.

remedies? (4)

where trustee breaches fidiciary duty, beneficiaries have choice of options 1. remove the trustee 2. ratify transaction and waive the breach 3. sue for resulting loss (name and action of surcharge) 4. if it's self dealing, trace and recover property

Product Liability: Implied Warranties- who can sue

who can sue- all reasonable foreseeable users can sue for personal injuries arising from a breach of an implied warranty

Recapture of Chattel - Privilege to enter depends on

who: wrongdoer or innocent Privilege to enter depends on who possesses property: Wrongdoer: reasonable time to reclaim chattel in a reasonable manner. Innocent person's property- 1st give notice required to landowner. If he refuses, D may enter at a reasonable time and peaceful manner.

Fraud?

will deception to induce a will requires: 1. deception 2. reliance

(extrinsic documents) incorporation by reference? (3)

will refers to documents outside of will 1 writing in existence at the time will executed 2. will must refer to and show intent to incorporate 3. identifiable- will must describe sufficiently - holographic wills can incorporate non-handwritten material by reference

Upon dissolution of a putative marriage courts?

will treat QMP as CP or QCP - it is unsettled law as to if the bad-faith spouse can invoke the doctrine to claim the property.

subscription agreement?

written offer to buy stock from a corp before its formed

Does a gap in the last 30 years of title cause unmarketable title?

yes!

If diversity jurisdiction does not exist at first, but the party defeating diversity leaves the case, then can the remaining defendant remove?

yes, as long as it's within 30 days

If someone even slightly burns your back porch, it it arson?

yes, even if it was mistaken and they put it out before any real damage happened

Does an easement recorded in chain of title even if there is no grantor grantee index create record notice?

yes.