MBE

Ethical rules apply to any...(PR)

"Law-Related Service" you personally provide. If provided by an entity you only control, you must disclose that attorney-client safeguards do not apply.

What was the language required at common law to create the FSA?

"To A and his heirs"

What magic words must be used to create a joint tenancy?

"as joint tenants, with right of survivorship" or "in joint tenancy with right of survivorship".

What type of language constitutes a conditional acceptance of an offer?

"if," "only if," "provided," "so long as," "but," or "on the condition that".

What are the tests for Actual Cause (Negligence)?

(1) "But For" Test (2) Joint Causes--Substantial Factor Test (3) Alternative Causes Approach

What are the 2 types of juror challenges?

(1) "For cause" (2) Preemptory (no cause).

Class Action types

(1) "Prejudice": Class treatment necessary to avoid harm (prejudice) either to class member or to the non-class party. (2) Class seeks injunction/declaratory judgment. (3) "Damages": Common questions predominate over individual questions; AND class action is the superior method to handle the dispute.

Degrees of Murder

(1) 1st Degree, (2) 2nd Degree, (3) Manslaughter

What parts of the Bill of Rights are not applicable to the states under the Due Process Clause of the 14th Amendment?

(1) 3rd amendment right to not have solider quartered in a person's home (2) 5th amendment right to grand jury indictment in criminal cases (3) 7th amendment right to jury trial in civil cases (4) 8th amendment right against excessive fines.

What are the consideration substitutes (i.e., legally enforceable even though no consideration exists)?

(1) A written promise to satisfy an obligation for which there is a legal defense is enforceable without consideration. (2) Promissory Estoppel

To establish a prima facie case of intentional tort, plaintiff must prove:

(1) Act by defendant (2) Intent (May be either specific or general) (3) Causation

What are the three ways that a successor-in-interest to the servient estate may be put on notice?

(1) Actual notice (or knowledge); (2) Constructive notice; (3) Inquiry notice

What are the exceptions to the general rule that ads and price quotations are not offers?

(1) Ad can be a unilateral K if it is in the nature of a reward. (2) An ad can be an offer if it specifies the quantity and expressly indicates who can accept. (3) Price quotation can be an offer if sent in response to an inquiry.

What are the exceptions to the Common Law "Pre-existing duty rule"?

(1) Addition to or change in performance (2) Unforeseen difficulty so severe as to excuse performance (3) Third-party promise to pay

How does a D respond to allegations of a complaint?

(1) Admit (2) Deny (3) State that you lack sufficient information to admit or deny.

To be valid, Expert Opinion must be based on:

(1) Admitted evidence, (2) Personal knowledge, or (3) inadmissible evidence reasonably relied upon.

Exceptions to the Good Faith Defense (Fourth Amendment)

(1) Affidavit underlying warrant is so lacking in probable cause that no reasonable police officer would have relied on it. (2) Affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it. (3) Police officer/prosecutor lied to or misled the magistrate when seeking the warrant. (4) If magistrate is biased and therefore has wholly abandoned his neutrality.

What types of classifications receive rational basis review?

(1) Age discrimination (2) Disability discrimination (3) Wealth discrimination (4) Economic regulations (5) Sexual orientation discrimination (6) All other classifications not afforded strict or intermediate scrutiny

What are the 4 "risk of loss" rules (sale of goods)?

(1) Agreement of the party controls; (2) Breaching party is liable for any uninsured loss even though breach is unrelated to problem; (3) Risk of loss shifts from seller to buyer at time seller completes its delivery obligation; or (4) Default/Catch-all rules apply.

Exceptions to the Confrontation Clause involving Co-Defendant Confession

(1) All portions of confession referring to D are eliminated. (2) Confessing D takes the stand for cross-examination. (3) Confession is being used to rebut D's claim that his confession was coerced, in which case jury must be instructed as to this purpose of admission.

Exceptions to Third Party Standing (Con Law)

(1) Allowed if there is a close relationship b/t the P and the injured third party. (2) Allowed if the injured third party is unlikely to be able to assert his or her own rights. (3) Organization may sue for its members if (i) members have standing to sue, (ii) the interests are germane to the organization's purpose, and (iii) neither the claim nor relief requires participation of individual members.

Essential Elements of a Crime

(1) An Act, (2) A Mental State, (3) Concurrence

Elements of Intentional Infliction of Emotional Distress

(1) An act by defendant amounting to extreme and outrageous conduct; (2) Intent or recklessness; (3) Causation; and (4) Damages--severe emotional distress.

Elements of Assault (Torts)

(1) An act by defendant creating a reasonable apprehension in plaintiff; (2) Of immediate harmful or offensive contact to plaintiff's person; (3) Intent by the def to bring about the apprehension of imminent harmful or offensive contact; and (4) Causation

Elements of Trespass to Chattels (Torts)

(1) An act by defendant that interferes with plaintiff's right of possession in a chattel; (2) Intent to perform the act that interferes with plf's right of possession; (3) Causation; and (4) Damages

Elements of Conversion (Torts)

(1) An act by defendant that interferes with plaintiff's right of possession in a chattel; (2) The interference is so serious that it warrants requiring defendant to pay the chattel's full value; (3) Intent (to take or damage the property); and (4) Causation. Note that conversion does not require def to damage or permanently deprive owner of the chattel, the interference must just be a serious invasion.

Elements of False Imprisonment (Torts)

(1) An act or omission on the part of defendant that confines or restrains plaintiff to (2) a bounded area; (3) Intent; and (4) Causation Damages are not required; i.e., plf can recover for nominal damages. However, plf must be aware of or be harmed by the confinement to have a valid claim.

Ex Parte TROs are proper only if:

(1) Applicant files paper under oath clearly showing that if the TRO is not issued he will suffer immediate and irreputable harm if he must wait until other side is heard. (2) Applicant's lawyer certifies in writing his efforts to give oral or written notice to D or D's lawyer (or why such notice should not be required).

What are the Invasion of Privacy torts?

(1) Appropriation of P's Picture or Name (2) Intrusion on P's Affairs or Seclusion (3) Publication of Facts Placing P in a False Light (4) Public Disclosure of Private Facts About P

Requirements for Search Incident to Arrest

(1) Arrest must be lawful. (2) Arrest and search must be contemporaneous in time and place.

In regards to Assignment, who can and cannot recover from whom?

(1) Assignee can recover from the obligor (2) Assignor for consideration cannot recover from obligor.

In regards to Third-Party Beneficiaries, who can sue whom?

(1) Beneficiary can recover from promisor (2) Promisee can recover from promisor (3) Creditor beneficiary can recover from promisee but only on pre-existing debt.

How do we prove the second requirement of past performance?

(1) Buyer paid full (or close to full) purchase price; or (2) Buyer built improvements on the property; or (3) Generally, Buyer took possession and the property and then took some further action (in partial performance of the contract) that clearly proves up the existence of the property.

When can the Supreme Court grant review?

(1) By appeal: Writ of certiorai and appeals of 3 judge federal district courts after a final judgment has been rendered. (2) Original and exclusive jurisdiction for suits between state governments.

When is indemnity available?

(1) By contract, (2) in vicarious liability situations, (3) under strict products liability and (4) in some jurisdictions, where there has been identifiable difference in degree of fault.

Creation of the Periodic Tenancy

(1) By express agreement (2) By implication where there is no agreement as to the tenancy's duration. If the lease does NOT specify how long the tenancy is to last, then it is presumed to be a periodic tenancy measured by the rent payment. The majority view is that a lease at an annual rent, payable monthly, creates a periodic tenancy from year to year, and not a month-to-month periodic tenancy. (3) By operation of law--TWO situations

Who can utilize collateral estoppel

(1) By someone who was a party to Case 1.

What are the 5 circumstances where a legal duty to act can arise? (crim)

(1) By statute; (2) By contract; (3) Because of parties' relationship; (4) Because you voluntarily assumed a duty of care and failed to adequately perform it; and (5) When your conduct creates the peril.

What are the objection to form of testimony and questions?

(1) Calls for Narrative (2) Unresponsive (3) Leading question (4) Assumes facts not in evidence (5) Argumentative (6) Compound

Limits on depositions

(1) Cannot take more than 10 depositions (2) Cannot depose the same person twice without court approval or stipulation. (3) Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

Res judicata Requirements

(1) Case 1 and Case 2 are brought by the same claimant and same defendant (2) Case 1 ended in a valid final judgment on the merits. (3) Case 1 and Case 2 assert the same "claim" (SPLIT IN AUTHORITY)

Collateral Estoppel Requirements

(1) Case 1 ended in valid, final judgment on the merits (2) The same issue was actually litigated and determined in Case 1. (3) The issue was essential to the judgment in Case 1 (finding was the basis of judgment) (4) Additional requirements depending upon who is trying to utilize collateral estoppel (mutual? non-mutual? defensive? offensive?)

What are the 2 requirements for Diversity cases?

(1) Case is either (a) between "citizens of different states" or (b) between "a citizen of a state and a citizen of a foreign country" (Alienage) AND (2) The amount in controversy exceeds $75,000

Homicide requires...

(1) Cause-in-fact and (2) Proximate Cause.

What are the two "doors" of character evidence in a criminal case?

(1) Character evidence to prove conduct of defendant (2) Character evidence to prove conduct of the victim

What are the grounds for a motion for Relief from Order or Judgment

(1) Clerical Error (2) Mistake, excusable neglect (3) New evidence that could not have been discovered with due diligence for a new trial motion (4) Judgment is void (e.g., no SMJ).

Getting a default judgment

(1) Clerk of court can enter judgment if: D made no response, the claim itself is for a sum certain in money, the claimant gives an affidavit of sum owed; and D is not a minor/incompetent (2) If any of the above are false, P must apply to the court itself.

Elements for Products Liability based on Strict Liability

(1) Commercial supplier, merchant, or markets the product (2) Producing, selling, or marketing a defective product (3) Defect existed when product left D's control (4) foreseeable use by P (needn't be appropriate or intended use) & plf must be a foreseeable plf. (5) Causation (6) Damages NOTE: Opportunity to inspect is irrelevant; as is whether a plf had the opportunity to discover the defect. It also doesn't matter that supplier had no reason to believe the product was defective, or that the manufacturer was at fault in selling or producing the defective product, only that the product was in fact defective. The manufacturer's exercise of due care is irrelevant.

What are the requirements for a "damages" class action?

(1) Common questions predominate over individual questions; AND (2) Class action is the superior method to handle the dispute.

Exceptions to Statutory Standards of Care/Statutory borrowing

(1) Compliance with the statute would have been more dangerous than the violation. (2) Statutory compliance is impossible given the circumstances.

What are the two types of counterclaim?

(1) Compulsory (2) Permissive

Which bodily movements do not qualify for criminal liability?

(1) Conduct which is not the product of your own volition. (2) A reflexive or convulsive movement. (3) An act performed while you are unconscious or asleep.

What are the 3 types of implied preemption?

(1) Conflict (2) Object (3) Field

What are the exceptions to the DCC rules?

(1) Congressional Approval (2) The market participant exception: A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.

What are the affirmative defenses to Defamation?

(1) Consent (complete defense) (2) Truth (where plaintiff need not prove falsity defendant may prove truth as a complete defense). (3) Privilege

What are the exceptions to the duty of confidentiality?

(1) Consent, (2) Defending Yourself, (3) Compelled by law, court order or ethical duties.

What are the exceptions to the "Actual" requirements of Adverse Possession?

(1) Constructive Adverse Possession (2) Leased Land

Contact analysis of personal jurisdiction

(1) Contact must result from purposeful availment (D's voluntary act). (2) Foreseeability: It must be foreseeable that D could get sued in this forum.

What is the two step process of Conveyancing?

(1) Contract (contract principles) and then (2) Actual conveyance (Property concepts control).

On closing, the contract merges into the deed and all contract provisions are extinguished UNLESS:

(1) Contract specifies they survive closing; or (2) They are included in the deed itself.

What are the defenses to negligence?

(1) Contributory Negligence (2) Assumption of Risk (3) Comparative Negligence

What are the three methods of indirect rejection of an offer?

(1) Counteroffer (2) Conditional acceptance (3) Additionally terms

What forms of conduct can be used as a source of contract terms?

(1) Course of performance (same parties, same K) (2) Course of dealing (same parties, different but similar K) (3) Custom and Usage (different but similar people, different but similar K)

What are examples of the "Entanglement Exception" to the Constitution not applying to private conduct?

(1) Courts cannot enforce racially restrictive covenants (2) State action when the government leases premises to a restaurant that racially discriminates. (3) State action where state provides books to schools that racially discriminate. But, no state action when private school that is over 99% funded by government fires teacher because of her speech. (4) There is no state actions when NCAA orders the suspension of basketball coach at a state university. But, there is state action when a private entity regulates interscholastic sports within a state. (5) No state action when private club with a liquor license from state racially discriminates.

What are the 3 future covenants for title?

(1) Covenant for Quiet Enjoyment (2) Covenant for Warranty: These two represent Seller's promise to protect Buyer against anyone who comes along later and claims paramount title to the property. (3) Covenant of Further Assurances (The Mop Up Covenant): If Seller omitted something required to pass valid title, Seller promises to do whatever is necessary to pass title to buyer.

What are the 3 Present Covenants for Title?

(1) Covenant for Seisin: Seller has title and possession. (2) Covenant of Right to Convey: Seller can validly convey title and possession. (3) Covenant Against Encumbrances: Seller promises that there are no encumbrances other than those that have been previously disclosed to the Buyer.

Restrictive Covenants falls into 2 categories:

(1) Covenants running with the land at law; and (2) Equitable servitudes enforced in equity.

What tools can a P use to show proof of breach of duty (Negligence)?

(1) Custom/Usage: May be used to establish the standard of care, but does not control the question of whether certain conduct amounted to negligence. (2) Violation of Statute: Negligence per se. (3) Res Ipsa Loquitur: In some cases, the very occurrence of an event may tend to establish a breach of duty.

What are the steps for impleading the TPD in the pending case?

(1) D files a third-party complaint naming the TPD; and (2) D serves process on the TPD. (Must have PJ over TPD).

What are the factors in determining whether non-mutual offensive issue preclusion is "unfair"?

(1) D had a full and fair opportunity to litigate in Case 1. (2) D had an incentive to litigate strongly in Case 1. (3) P (in Case 2) could not have joined easily in Case 1. (4) There are no inconsistent findings on this issue.

What are the remedies for breach of land sale contract?

(1) Damages: Generally the difference between the contract price and the value of the property as of the date of the breach. Liquidated damage provision are enforceable, provided the amount is reasonable (no more than 10% of contract price) (2) Specific Performance: Available to both parties. This is the preferred remedy in all situations because land is unique.

Termination of the Tenancy by the Entirety

(1) Death (surviving spouse retains interest) (2) Mutual agreement in writing (3) Divorce (4) Execution by a JOINT creditor

Exceptions to rule re: Fee-Splitting with Non-Lawyers

(1) Death benefits paid to a deceased lawyer's firms or heirs for his work; (2) Salaries paid to non-lawyer employees; and (3) sharing of court-awarded legal fees with a non-profit organization that employed or recommended the lawyer.

Re: the Duty of Confidentiality, your duty to uphold the law allows revelations to protect (ABA):

(1) Death/Substantial bodily harm (you may reveal what's necessary to prevent the act, if you reasonably believe it will prevent reasonably certain death or substantial bodily harm; (2) Financial interests (you may reveal confidences if client using your services to commit crime and disclosure would prevent or mitigate substantial financial loss).

Termination of Covenants and Servitudes

(1) Deed of Release (2) Merger: Unity of Ownership (3) Changed Conditions: If all lots in subdivision are affected, then the use restriction is eliminated (ALL OR NOTHING).

Elements of Defamation: Common Law

(1) Defamatory language; (2) "Of or concerning" the plaintiff; (3) Publication thereof by defendant to a third person; and (4) Damage to plaintiff's reputation.

Police Officer Homicide Requirements

(1) Defendant must know victim is a law enforcement officer, and (2) Victim must be acting in line of duty.

What are the 4 requirements for finding intent re: fixtures?

(1) Degree of attachment; (2) General custom (type of thing normally taken when possessor leaves?); (3) Degree of harm to premises on removal (courts favor tenants; requires substantial damage); (4) Trade Fixtures (always removable).

What are the two substantive bases on which you can attack a pre-trial identification?

(1) Denial of right to counsel and (2) Denial of due process

What are the five discovery tools?

(1) Depositions (2) Interrogatories (3) Requests to Produce (4) Medical Exams (5) Requests for admission

What are the 2 (maybe 3) types of cases that can be heard in federal court?

(1) Diversity of Citizenship (2) Federal Question (3) If a claim has supplemental jurisdiction

Exclusionary Rule limitations

(1) Does not apply to grand jury proceedings. (2) Does not apply to civil proceedings. (3) Does not apply in parole revocation proceedings. (4) Does not apply to the use of excluded evidence for impeachment purposes.

When is personal jurisdiction clearly constitutional?

(1) Domiciled in the forum or (2) Consents or (3) Is voluntarily present in the forum when served with process.

Elements of Negligence

(1) Duty on part of defendant to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury; (2) Breach of that duty by defendant; (3) That breach is the actual and proximate cause of plaintiff's injury; and (4) Damages (plf must have suffered some harm—nominal damages will not be awarded)

Duties of the Landlord

(1) Duty to deliver possession of leased premises (2) Duty re: Condition of leased premises (3) Implied covenant of quiet enjoyment

What are the duties of the Tenant?

(1) Duty to pay rent (2) Duty to maintain premises

Termination of Easement

(1) Easement may end by reason of its terms. (2) Unity of Ownership: Doctrine of Merger (3) Deed of Release (4) Abandonment (5) Termination by Estoppel (6) Termination by Prescription (7) Termination created by Necessity (8) Condemnation of the servient estate (in which case, the easement holder may be entitled to compensation for the value lost) (9) Involuntary destruction of the servient estate (a storm), but NOT voluntary destruction (i.e., tearing down a building)

Types of easements

(1) Easements Appurtenant; and (2) Easements in Gross

What are the 4 clearly substantive issues under the Erie Doctrine?

(1) Elements of a claim or defense (2) Statute of Limitations (3) Rules for tolling statutes of limitations. and (4) Conflict of law rules

What are the 4 relationships potentially amounting to vicarious liability?

(1) Employer-Employee: Respondeat Superior (2) Independent contractor: NO Vicarious Liability, UNLESS contractor hurts invitee on business owner's property. (3) Auto owner-Auto driver: NO Vicarious Liability. Owner not responsible for driver torts UNLESS driver is doing favors/errands for owner. (4) Parents-Children: NO Vicarious Liability (5) Nondelegable duty due to public policy considerations (common carrier taxi cab Q)

What are the constitutional provisions concerning Equal Protection?

(1) Equal protection clause of the 14th Amendment applies only to state and local governments. (2) Equal protection is applied to the federal government through the due process clause of the 5th Amendment.

What are the RAMBO sanctions?

(1) Establishment Order (establish facts as true) (2) Strike pleadings of the disobedient party (discovery) (3) Disallow evidence from the disobedient party (discovery) (4) Dismiss P's case (bad faith) (5) Enter default judgment against the D (bad faith)

What are the 3 interests in land?

(1) Estates, (2) Easements, and (3) Covenants

A failure to disclose exculpatory information will constitute grounds for reversing a conviction if:

(1) Evidence is favorable to the defendant, and (2) Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed.

What are the two exceptions to the general rule of settlement evidence admissibility?

(1) Exception to settlement where no claim filed or threatened. (2) Exception to settlement rule where no dispute as to liability or damages.

What two requirements must be satisfied for the deed to pass title?

(1) Execution (2) Delivery

What are the methods of easement creation?

(1) Express (2) Implied (2) Prescription

What are the warranties of quality (contracts)?

(1) Express Warranty (2) Implied Warranty of Merchantability (3) Implied Warranty of Fitness

How are express easements created?

(1) Express grant of an easement to someone else; (2) Express reservation of an easement when land is sold to another person. Generally, must (1) be in writing (if 1 year or more); (2) be signed by the holder of the servient estate; and (3) satisfy all deed formalities.

Warranties + Disclaimers

(1) Express warranties generally cannot be disclaimed (2) Implied warranties CAN be disclaimed through either conspicuous language of disclaimer or "as is"/"with all faults".

What are the defeasible fees?

(1) Fee Simple Determinable (2) Fee Simple Subject to Condition Subsequent (3) Fee Simple Subject to Executory Interest

Limitations on Felony Murder

(1) Felony committed must be a felony other than the killing. (2) Deaths must be foreseeable. (3) While fleeing, once the defendant reaches a point of temporary safety deaths caused thereafter are NOT felony murder. (4) Defendant is not liable for death of co-felon as a result of resistance by victim or police (majority rule).

Examples of Symbolic Speech

(1) Flag burning is constitutionally protected speech. (2) Draft card burning is not constitutionally protected speech (Government has important important interest in keeping card). (3) Local governments may prohibit nude dancing (not protected). (4) Burning a cross is protected speech unless it is done with the intent to threaten. (5) Contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional.

Rules re: Impeachment with Evidence of Bias, Interest, Motive.

(1) Foundation requirement: Extrinsic Evidence admissible if witness given opportunity to explain or deny.

What are the two categories of future interest?

(1) Future interests retained by grantor; and (2) Future interests given to Grantee.

What types of classifications receive intermediate scrutiny review?

(1) Gender (2) Illegitimacy (3) Undocumented alien children

What are the types of verdicts?

(1) General: Jury states who won and relief granted. (2) Special: Jury answers specific questions about facts in dispute. Judge then reaches legal conclusion based on facts found. (3) General verdict with special interrogatories: Jury gives general verdict + answered specific questions submitted to it.

Elements of Battery (Torts)

(1) Harmful or offensive contact (direct or indirect); (2) To plaintiff's person; (3) Intent to bring about the harmful/offensive contact; and (4) Causation Damages are not required—thus, plf can recover nominal damages even if she sustained no physical injury.

What are the exceptions to the double jeopardy clause/retrial?

(1) Hung jury. (2) Mistrials for manifest necessity. (3) Retrial after successful appeal. (4) Breach of an agreed upon plea bargain by defendant.

What evidence must be disclosed under "Initial disclosures"?

(1) Identities of persons who have discoverable info that you may use to support your claims/defenses. (2) Documents and things you may use to support your claims or defenses. (3) Computation of monetary relief and the documents/ESI supporting it. (4) Insurance coverage (D must disclosure any insurance that might cover all of part of the judgment)

Irrevocable License Rules

(1) If an easement is attempted, but FAILS due to Statute of Frauds, a license is created. (2) If money is spent on the property in furtherance of an oral license, then that license becomes irrevocable.

What is the Tenant's duty to maintain the premises?

(1) If lease is silent--Tenant is subject to common law duty not to commit waste. If leased premises are destroyed without the tenant's fault, the tenant generally will be given the option to terminate the lease. (2) If lease include covenant to repair: Express covenant by a tenant to repair and maintain makes tenant an absolute insurer of the property--with the exception that, at common law, the tenant was not responsible for ordinary wear and tear. The modern majority view excludes this exception, unless that parties' agreement expressly excludes this responsibility from tenant's repair covenant. Additionally, if the leased premises are destroyed without the tenant's fault, the tenant generally will not be required to rebuild the structure unless the lease expressly includes this type of repair.

What are the exceptions to the objective standard of the RPP?

(1) If you have superior skill or knowledge you must act as the RPP without that superior skill/knowledge. (2) Physical characteristics are incorporated into RPP, i.e., a physical disability (RPP of those characteristics). Mental retardation or lack of intelligence are irrelevant to the RPP standard.

What are all the possible "flavors" of Impeachment?

(1) Impeachment by Contradiction (2) Impeachment by Prior Inconsistent Statement (PIS) (3) Impeachment with Evidence of Bias, Interest, Motive (4) Impeachment with Conviction of Crime Involving False Statement (5) Impeachment with Conviction for a Crime Not Involving False Statement (6) Impeachment with Non-Conviction Misconduct Bearing on Truthfulness (7) Impeachment with Reputation and Opinion Regarding Truthfulness

What are the 2 UCC answers to the question: "What does the seller have to do to complete its delivery obligation?"

(1) In a shipment contact, the seller completes it delivery obligation when (i) it gets the goods to a common carrier, and (ii) makes reasonable arrangements for delivery, and (iii) notifies the buyer. Here, the seller completes it delivery obligation before delivery is completed. (2) In a destination contract, the seller completes its delivery obligation when the goods arrive at the destination

Exceptions to FoPT Doctrine (breaking chain b/t unlawful police action and supposedly derived piece of evidence):

(1) Independent Source (independent of original police illegality). (2) Inevitable Discovery (police would have found anyways). (3) Intervening acts of free will on the part of the defendant.

Who lacks capacity to contract?

(1) Infant (under 18) (2) Mental incompetents (3) Intoxicated persons if other party has reason to know.

What must exist for Standing to be Satisfied? (Con Law)

(1) Injury (2) Causation (3) Redressability

What are the defenses for crimes based on criminal capacity?

(1) Insanity; (2) Intoxication; and (3) Infancy.

Requirement to obtain an injunction to enforce the BENEFIT of a promise as an Equitable Servitude

(1) Intent (2) Touch and Concern

Requirement to obtain an injunction to enforce the BURDEN Of the Promise as an Equitable Servitude:

(1) Intent (2) Touch and Concern (3) Notice

Requirements to enforce an Equitable Servitude (Injunction)

(1) Intent that the restriction be enforceable by Successors-in-Interest (2) Restriction touches and concerns the land (3) Notice to the Subsequent Purchaser IF ATTEMPTING TO ENFORCE THE BURDEN.

Requirements to Establish a Mutual Right of Enforcement

(1) Intent to impose a servitude (restriction on use) on ALL land in the subdivision (e.g., from common building plan showing widespread use of land) (2) Notice

What are the theories of liability a plaintiff may use in a products liability case?

(1) Intent, (2) Negligence, (3) Strict Liability, and (4) Implied warranties of merchantability and fitness for a particular purpose, and (5) representative theories (express warranty and misrepresentation).

4 requirements to enforce a restrictive covenant at law:

(1) Intent: Parties must intend that the restriction run with the land. (2) Notice to the person against whom enforcement is sought (3 kinds of notice). (3) Touch and Concern (Does performance of covenant make the land more valuable/useful?). (4) Privity: Conveyance b/t the parties; 2 kinds. What kind of privity required depends on whether benefit or burden is being enforced. Vertical refers to those who subsequently obtain the property subject to the covenant. Horizontal refers to the original parties to the promise. Either: Vertical AND Horizontal (Burden) or just Vertical (Benefit)

What are the two kinds of intervention?

(1) Intervention of right: A's interest may be harmed if she is not joined and is not adequately. (2) Permissive Intervention: A's claim or defense and the pending case have at least one common question. Discretionary with the court. Usually OK unless intervention will cause delay or prejudice.

What is the 3-step approach to admissibility of impeachment evidence?

(1) Is source of impeachment extrinsic evidence or testimony of this witness being impeached? (2) If extrinsic, is it admissible given impeachment techniques? (3) Any other foundation requirements?

The Erie Doctrine process (step-by-step)

(1) Is there some federal law on point that directly conflicts with state law? If so, apply federal law, as long as it is valid. (2) If there is no federal law on point, the federal judge must apply state if if the issue to be determined is "substantive" (4 categories) (3) If there is no federal law on point and the issue is not one of 4 clearly "substantive", the federal judge must determine whether the issue is "substantive". (3 factors)

Approach for 4th Amendment questions

(1) Is this conduct governmental conduct? (2) Did defendant have a reasonable expectation of privacy? (3) Did the police have a valid search warrant? (4) If warrant not valid, does officer's good faith defense save the defective warrant. (5) If warrant is valid and cannot be saved by good faith defense (or if police never had a warrant at all): Does this fall within an exception to the warrant requirement.

What are the grounds for ordering a new trial?

(1) Judge gave an erroneous jury instruction; (2) New evidence that could not have been gotten before with due diligence; (3) Misconduct by juror or party or lawyer, etc.; (4) Judgment is against weight of the evidence' (5) Inadequate or excessive damages.

Voluntary Manslaughter Requirements

(1) Killing done in heat of passion resulting from an adequate provocation of victim (subjective) (2) Provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self-control (objective) (3) Must not be sufficient amount of time b/t provocation and killing for reasonable person to "cool off" (objective) (4) Defendant in fact did not cool off b/t provocation and killing (subjective)

Involuntary Manslaughter

(1) Killing of criminal negligence or (2) Misdemeanor manslaughter.

Actual Malice (Defamation)

(1) Knowledge that the statement was false; or (2) Reckless disregard as to whether it was false. Subjective test.

What are the legal reasons for a contract to be unenforceable?

(1) Lack of consideration (2) Lack of capacity of person making promise (3) Statute of Frauds (4) Existing laws that prohibit the performance of the agreement (5) Public policy (6) Misrepresentations; (7) Nondisclosure (8) Duress (9) Unconscionability (10) Ambiguity (11) Mistakes at time of agreement as to material facts affecting the agreement.

Landlord's remedies if Tenant unjustifiably abandons

(1) Landlord can accept Tenant's offer of abandonment (surrender). Does so by retaking premises and thereby terminating lease. Tenant has no further rent obligation (2) Landlord relets premises, holding Tenant liable for any deficiency. Common Law: No duty to mitigate tenant's damages Modern Majority: Landlord must make reasonable effort to relet property in order to mitigate Tenant's damages.

What are the four methods of termination of an offer?

(1) Lapse of time (2) Death of a party prior to acceptance (3) Revocation (4) Rejection

Property Crimes

(1) Larceny, (2) Embezzlement, (3) False Pretenses, (4) Robbery, (5) Extortion, (6) Forgery

Exceptions to general rule re: tort liability of landlord and tenant

(1) Latent Defects (2) Short term lease of furnished dwellings (3) Common passageways under landlord's control (4) Negligent repairs undertaken by landlord (5) Public use exception

How is an offer terminated via Revocation?

(1) Later unambiguous statement by offeror to offeree of unwillingness or inability to contract; OR (2) Later unambiguous conduct by offeror indicating an unwillingness or inability to contract that offeree is aware of.

Products Liability action based on negligence theory (Elements)

(1) Legal duty owed by D to P; (2) Breach of that duty (negligent conducts leading to the supplying of a defective product); (3) Actual and Proximate Cause; (4) Damages

General rules re: Rejection of goods

(1) Less than perfect tender gives buyer the option to reject goods so long as buyer acts in good faith. (2) Buyer must take reasonable care of the goods and cannot continue to use the goods. (3) The option of rejection because of less than perfect tender is limited by the concepts of cure, installment Ks, and acceptance.

What policy reasons exist for excluding relevant evidence?

(1) Liability Insurance (2) Subsequent remedial measures or repairs (3) Settlements and offers to settle/plea (4) Payment of offers to pay medical expenses

What are the 3 types of Strict Liability?

(1) Liability for animals; (2) Liability for abnormally dangerous activities; and (3) Liability for dangerous or injurious products

Insanity Rules

(1) M'Naghten Rule; (2) Irresistible Impulse; (3) Durham Rule; (4) Model Penal Code.

What is required in a Type 3 "Damages" class action notice?

(1) Members can opt out; (2) that they'll be bound if they don't; and (3) that they can enter a separate appearance through counsel.

What are the exceptions to express consent (torts)?

(1) Mistake will undo express consent if defendant knew of and took advantage of the mistake; (2) Consent induced by fraud will be invalidated if it foes to an essential matter, but not a collateral matter; and (3) Consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.

Under the intentional tort of false imprisonment, what are insufficient acts of restraint?

(1) Moral pressure and (2) future threats.

What are the 2 Malice Crimes?

(1) Murder (Common Law and 2nd Degree); and (2) Arson.

Duty to Retreat exceptions

(1) No duty to retreat from your home. (2) No duty to retreat if you are the victim of a rape or robbery. (3) Police officers have duty to retreat.

Class Action Initial Requirements

(1) Numerosity (2) Commonality (3) Typicality (4) Representative Adequate

The written report of an expert witness must include:

(1) Opinions EW wil express (2) Bases for the opinions (3) Facts being used to form the opinions (4) EW's qualifications (5) EW's compensation

When is an offer irrevocable?

(1) Option Ks (2) UCC "Firm Offer Rule" (3) Reliance (4) Unilateral K + Start of Performance

Creation of the Periodic Tenancy by Operation of Law

(1) Oral lease that violates the Statute of Frauds; rent payment dictates period. (2) Holdover Tenant: When the landlord accepts a rent check from a holdover tenant, a periodic tenancy is created by operation of law for the period specified in the rent check.

What are the 3 factors

(1) Outcome determinative: Would applying or ignoring the state rule affect outcome of case? If so, it's probably a substantive rule. (2) Balance of interests: Does federal or state system have a strong interest in its rule being applied? (3) Avoid forum shopping: If federal court ignores state law on this issue, will it cause parties to flock to federal court?

Rules re: Impeachment by Prior Inconsistent Statement

(1) PIS of witness who testifies at trial = not hearsay if given under oath at trial or deposition. Otherwise, it is hearsay and inadmissible if offered to prove truth. (2) Extrinsic Evidence of PIS inadmissible to impeach on collateral matter. (3) Foundation requirement: Extrinsic Evidence admissible only if witness given opportunity to explain or deny.

Sanctions against a party in a partial response to discovery request

(1) Party moves for an order compelling the party to answer the unanswered questions, plus costs of bringing motion. (2) If the part violates the order compelling him to transfer RAMBO sanctions plus costs and could be held in contempt for violating a court order.

What is the Payment of the Proceeds from a Foreclosure sale?

(1) Pay the cost of the foreclosure (2) Pay off the mortgage that was foreclosed on (3) Pay off junior interest in order of priority. (4) Pay off remaining balance to mortgagor.

How can the Statute of Frauds be satisfied?

(1) Performance (2) Writing (3) Delay in Responding (4) Judicial Admission (5) Estoppel

What are the 4 competency requirements?

(1) Personal Knowledge (Perception may be limited) (2) Present Recollection (must testify from recollection, not record re: matters witness once knew but has since forgotten) (3) Communication (Witness must be able to relate perception) (4) Sincerity (Witness must take oath)

What are the options for service of process?

(1) Personal Service (2) Substituted Service (3) Service on D's Agent (4) Methods for serving process that are permitted by state law of the state where the federal court sits or where service is made.

What stages of pre-trial identification require NO counsel?

(1) Photograph showings (2) Taking of blood samples (3) Taking of handwriting samples (4) Pre-charge lineups (5) Brief recess during defendant's testimony at trial. (6) Parole and probating revocation proceedings. (7) Taking of fingerprints

Elements of Trespass to Land (torts):

(1) Physical invasion of plaintiff's real property (2) Intent; and (3) Causation

How do you determine what a person's domicile is for purposes of diversity?

(1) Physical presence in the state; (2) Intent to make that your permanent home. Courts look to taking a job, buying a house, joining civic organizations, registering to vote, qualifying for instate tuition.

What are the 4 good bases for withdrawing a guilty plea after sentence?

(1) Plea was involuntary (not involuntary merely because it was entered in response to prosecution's threat to change defendant with a more serious crime). (2) Lack of jurisdiction. (3) Ineffective assistance of counsel. (4) Failure of the prosecutor to keep an agreed upon plea bargain.

Plain View Doctrine Requirements

(1) Police officer must be legitimately on premises where viewing is done. (2) It must be immediately apparent that the item is contraband/fruit of crime.

What are the 2 types of takings?

(1) Possessory Taking (2) Regulatory Taking

First-Degree Murder: 3 types

(1) Premeditated killing; (2) Felony Murder; (3) Homicide of a Police Officer

How are implied easements created?

(1) Previous use by a common grantor/owner: To obtain there must be previous use by a common owner and this previous use must satisfy 3 requirements: (i) continuous, (ii) apparent/open and obvious; (iii) reasonably necessary. (2) Absolute Right of Access Rule: Occurs when common owner is completely landlocked. Owner of servient estate can choose the location of the easement so long as the choice is a reasonable one.

Fifth Amendment

(1) Privilege against compulsory self-incrimination. (2) Prohibition against Double Jeopardy.

What are the two requirements for a facially valid search warrant?

(1) Probable Cause and (2) Particularity.

What are the special duty standards displacing the RPP?

(1) Professionals (2) Children (3) Premise Liability (4) Statutory Standards of Care (5) Duties to act affirmatively (6) Negligent Infliction of Emotional Distress (7) Common Carriers/Innkeepers (8) Persons w/ disability (9) Emergencies

What are the limitations on assignment?

(1) Prohibition: Assignor breaches, but Assignee can still enforce assignment. (2) Invalidation: Assignor breaches and the Assignee has no rights in the contract. (3) Common law: Bars assignment that substantially changes the duties of obligor.

Promissory Estoppel (elements)

(1) Promise (2) Reliance that is reasonable, detrimental, and foreseeable, and (3) Enforcement necessary to avoid injustice

What contracts are within the Statute of Frauds?

(1) Promises to answer for the debts of another (suretyship) (2) Service contract not capable of being performed within a year from the time of contact (3) Transfers of interest in real estate (exception for leases <1 year) (4) Sale of goods for $500 or more.

What must a Seller do to satisfy their implied covenant of Marketable Title?

(1) Proof of Title: Some tangible evidence of title. (2) Title free from encumbrances: No easements, restrictive covenant, mortgages, options other than those previously disclosed. (3) Valid Legal Title as of Date of Closing: Generally, Seller must give buyer valid leal title on the day of closing.

Magic words to identify the fee simple subject to condition subsequent

(1) Provided, however (2) But, if (3) On condition that

What are the categories of places available for speech?

(1) Public Forums (2) Designated Public Forums (3) Limited Public Forums (4) Non-public forums

What are the exceptions to the Constitution not applying to private conduct (e.g., situations where private conduct must comply with the Constitution)?

(1) Public Function Exception: Constitution applies if private entity is performing a task traditionally, exclusively done by the government. Narrow exception. (2) Entanglement exception: Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. General rule: If the discrimination is race-based, entanglement usually applies. If discrimination is not race based, it is much less likely to apply.

Public School Search Rules

(1) Public school children engaged in extracurricular activities can be randomly drug tested. (2) Warrantless searches of public school children's effects is permissible to investigate violations of school rules. (3) Search must (i) offer moderate chance of finding evidence of wrongdoing; (ii) measures adopted to carry out search must be reasonably related to the objectives of the search; and (iii) search may not be excessively intrusive.

Elements of an Invasion of privacy under a theory of False Light

(1) Publication of facts about P by D placing P in a false light in the public eye; and (2) The "false light" must be something that would be highly offensive to a reasonable person under the circumstances.

Elements of an Invasion of privacy under a theory of public disclosure of privacy facts

(1) Publication or public disclosure by D of private info about P; and (2) Matter made public is such that its disclosure would be highly offensive to a reasonable person of ordinary sensibilities.

What is governmental conduct under the Fourth Amendment?

(1) Publicly paid police (on or off duty) or (2) any private individual acting at the direction of the public police.

What are the Model Penal Code mental states?

(1) Purposely; (2) Knowingly; (3) Recklessly; (4) Negligently.

What types of classifications receive strict scrutiny review?

(1) Race (2) National origin (3) Alienage--generally

What concepts must exist for an excuse based on insecurity?

(1) Reasonable grounds for insecurity (2) Written demand for adequate assurance (3) Commercially reasonable to stop performance

What are the future interest granted to Grantee?

(1) Remainder (2) Executory Interest

Tenant must do 3 things to avoid liability for permissive waste

(1) Repairs, (2) Taxes, (3) Mortgage debt

Buyer's remedies for Seller's failure to deliver marketable title

(1) Rescission (2) Damages (3) Specific Performance coupled with a reduction in the purchase price to reflect the defects in Seller's title.

What does D do in an answer?

(1) Respond to allegations of complaint (2) Raise affirmative defenses.

What are the future interests retained by grantor?

(1) Reversion (2) Possibility of Reverter (3) Right of entry

What rights trigger Strict Scrutiny?

(1) Right to Marry (2) Right to Procreate (3) Right to custody of children (4) Right to keep family together (5) Right to control raising of children (6) Right to purchase and use contraceptives (7) Right to travel (8) Right to vote (9) Freedom of Speech (10) Freedom of Association (11) Free Exercise of Religion

What are the consequences of incapacity in contracts?

(1) Right to disaffirm by person without capacity (2) Implied affirmation by retaining benefits after gaining capacity (3) Quasi-contract liability for necessaries

What rights trigger an unknown level of scrutiny?

(1) Right to engage in private consensual homosexual activity (2) Right to refuse medical treatments (3) Right to possess firearms.

What rights are included in the right to privacy?

(1) Right to marry: Gov. may only interfere with marriage if SS met. (2) Right to procreate (3) Right to custody of one's children: Permanent termination of custody only allowed if SS met. (4) Right to keep the family together: Including extended family. (5) Right to control the upbringing of one's children: Gov. can interfere with parenting decision only if SS met. (6) Right to purchase and use contraceptives (7) Right to abortion: See slide (8) Right to engage in private consensual homosexual activity: Laws can only prohibit such conduct if SS met. (9) Right to refuse medical treatment: Competent adults have right to refuse. State may require clear and convincing evidence that a person wanted treatment terminated before it is ended. State may prevent family member from terminating treatment for another. NO right to physician-assisted death.

What rights trigger Rational Basis Review?

(1) Right to practice a trade or profession (2) Right to physician-assisted death (3) Right to education

Sixth Amendment

(1) Right to speedy trial. (2) Right to trial by jury. (3) Right to confront witnesses. (4) Right to assistance of counsel.

How can a severance take place (Joint Tenancy)

(1) Sale/conveyance (2) Mortgage (3) Contract of Sale (4) Creditor's Sale of interest in Joint Tenancy (5) Severance NOTE that a will cannot sever a joint tenancy b/c the tenant's interest is destroyed upon death due to right of survivorship.

Limitations on Personal Jurisdiction (2 steps)

(1) Satisfy the state Statute (2) Satisfy the Constitution (Due Process)

What are the exceptions to the warrant requirement (Fourth Amendment)?

(1) Search incident to arrest. (2) Automobile Exception. (3) Plain View Doctrine. (4) Consent (5) Stop and Frisk. (6) Evanescent Evidence, Hot Pursuit and Special Needs searches.

Lemon Test

(1) Secular: There must be a secular purpose for the law. (2) Enhance: The effect must be neither to advance nor inhibit religion. (3) Excessive: There must not be excessive entanglement with religion.

When is evidence bout other people and events admissible (usually such evidence is irrelevant)?

(1) Similar occurrences is sometimes admissible to prove causation (2) Prior accidents or claims of plaintiffs are usually irrelevant EXCEPT when there is a pattern of fraudulent claims from the P OR when its evidence of a pre-existing condition. (3) Previous similar acts relevant to prove intent. (4) Evidence relevant to rebut a defense of impossibility. (5) Comparable sales relevant to establish value. (6) Habit evidence is admissible. (7) Routine practice evidence (8) Industrial custom evidence relevant to prove standard of care in negligence case.

Magic words to identify the Fee Simple Determinable?

(1) So long as (2) While (3) During (4) Until

What are the 11 Specific Intent crimes?

(1) Solicitation; (2) Conspiracy; (3) Attempt; (4) 1st Degree Murder; (5) Assault; (6) Larceny; (7) Embezzlement; (8) False Pretenses; (9) Robbery; (10) Burglary; (11) Forgery.

Attempt (Definition)

(1) Specific Intent + (2) Overt act in furtherance of crime.

What are the 4 Common Law mental states?

(1) Specific intent; (2) General intent; (3) Malice; and (4) Strict Liability.

When are suits against state officers allowed?

(1) State officers may be sued for injunctive relief. (2) State officers may be sued for money damages to be paid out of their own pockets.

How do we determine the citizenship of a corporation?

(1) State or Country where incorporated; and (2) State or Country of its principal place of business.

Misrepresentation as a reason for not enforcing a contract (elements)

(1) Statement of "fact" before the contract (2) by one of the contracting parties or her agent (3) that is false (4) that is fraudulent or material, and (5) induces the contract.

Requirements of the complaint

(1) Statement of grounds of subject matter jurisdiction (2) Short and plain statement of the claim, showing entitlement to relief (3) Demand for relief sought.

Rules re: State taxation of interstate commerce

(1) States may not use their tax systems to help in-state businesses. (2) State may only tax activities if there is a substantial nexus to the state. (3) State taxation of interstate businesses must be fairly apportioned.

What limitations may exist on warranty liability?

(1) Statute of Limitations (2) Privity (3) Buyer's examination of the goods (4) Disclaimer (5) Limitation of Recoveries

Strict Liability for Animals

(1) Strict Liability to licensees and invitees for wild animals. (2) No strict liability for domestic animals UNLESS D has knowledge of that particular animal's dangerous propensities that are not common to the species. (3) Strict Liability not available to trespassers NOTE that honeybees are domestic (farm) animals.

What are the 2 types of content-based laws?

(1) Subject matter restrictions (application of law depends on topic of message). (2) Viewpoint restrictions (application of the law depends on ideology of message).

Landlord's options re: Tenancy at Sufferance

(1) Sue to Evict (Either in trespass or to recover damages). (2) Impose new Periodic Tenancy (rent payment period if expired tenancy is less than a year for residual property or year-to-year for commercial property). NOT allowed if it is not reasonable under the circumstances.

Tenant's remedies for the Landlord's breach of the implied warranty of habitability.

(1) T can move out and end the lease (2) T can stay on the property and sue for damages. (3) Some states allow T to make reasonable repairs and deduct this cost from future rent payments.

What are the two requirements for a vested remainder?

(1) Taker is ascertainable; and (2) there are no conditions to taking

What are the non-freehold estates?

(1) Tenancy for Years (2) Periodic Tenancy (3) Tenancy at Will (4) Tenancy at Sufferance

How do you have supplemental jurisdiction?

(1) The Test: Claim that you want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction. (2) The Limitation: But, by statute certain claims cannot invoke supplemental jurisdiction even if they meet "the test". This limitation only applies in diversity cases. The limitation takes away supplemental jurisdiction over claims by P in diversity only if P is trying to assert a claim against co-citizenship. (3) Discretionary factors

What are the limitations on the Doctrine of Constructive Possession?

(1) The amount of land that is actually possessed must bear a reasonable relation to the whole. (2) The property must be unitary, which means the parcel of land must be one seamless whole.

Police may search the interior of an automobile incident to arrest only if:

(1) The arrestee is unsecured and still may gain access to the interior of the vehicle; OR (2) The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

First Amendment re: Possible Disceptive Speech

(1) The government may prevent professionals from advertising or practicing under a trade name. (2) The government may prohibit attorney, in-person solicitation of clients for profit. (3) The government may not prohibit accountants from in-person solicitation of clients for profit.

What are the elements for the prima facie case of Strict Liability?

(1) The nature of D's activity imposes an absolute duty to make safe; (2) the dangerous aspect of the activity was the actual and proximate cause of the P's injury; and (3) the plaintiff suffered damage to person and property.

When lawyer signs documents, she certifies to the best of her knowledge and belief, after reasonable inquiry, that...

(1) The paper is not for an improper purpose; and (2) The legal contentions are warranted by law (or nonfrivolous argument for law change), and (3) The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).

Under the Fourth Amendment, what are the "No standing" categories?

(1) The sound of your voice. (2) The style of your handwriting. (3) The paint on the outside of your car. (4) Account records held by a bank (5) Monitoring the location of your car on a public street or in your driveway (BUT, installation of a GPS device on a suspect's car constitutes a search within the Fourth Amendment). (6) Anything that can be seen across the open fields. (7) Anything that can be seen from flying over in the public airspace. (8) The odors emanating from your luggage or car. (9) Your garbage set out on the curb for collection.

Party moving for FRCP 56 Motion for Summary Judgment must show:

(1) There is no genuine dispute of material fact; and (2) That she is entitled to judgment as a matter of law.

What are the three different kinds of third-party contract problems?

(1) Third-party beneficiaries (2) Assignments of contract (3) Delegations of contract duties

When can a seller cure less than perfect tender?

(1) Time for performance has not yet expired (2) Seller has reasonable ground to believer tender would be acceptance

What language at common law created a Fee Tail?

(1) To A and the heirs of his or her body; OR (2) To A and his or her bodily heirs.

Two most important questions re: Duty (Negligence)

(1) To whom is the duty owed? (2) How much of a duty do you owe?

How may a landlord breach the implied covenant of quiet enjoyment?

(1) Total Eviction (2) Partial Eviction (3) Constructive Eviction

Defenses to Enforcement of Covenant as an Equitable Servitude

(1) Unclean Hands: P has made same use of her property (2) Acquiescence: P let other neighboring landowners do the same thing on their lots. (3) Laches: P sat by while D built something and only complained after the building project was completed. (4) Estoppel: P represented that she had no problems with D's plans.

How can the 5th amendment privilege against compelled testimony be eliminated?

(1) Under grant of immunity. (2) No possibility of incrimination. (3) Waiver (Taking the witness stand waives privilege as to all legitimate subjects of cross examination).

4 categories of entrants in premise liability (negligence)

(1) Undiscovered Trespassers (2) Discovered Trespassers (3) Licensees (4) Invitees

What are the two presumptions where the easement is silent on use?

(1) Unless otherwise specified, an easement is presumed to be perpetual--lasting forever. (2) The use presumed is that of reasonable development of dominant easement. Reasonable development is that development which would likely have been contemplated by the parties at the time the easement was granted.

Premeditated Killing requirements

(1) Victim must be human, (2) Victim must be dead, and (3) Defendant must have acted with intent or knowledge that his conduct would cause death.

What are the categories of waste?

(1) Voluntary Waste, (2) Permissive Waste, (3) Amerliorative Waste

2 types of Intoxication Defense

(1) Voluntary and (2) Involuntary

Manslaughter: 2 types

(1) Voluntary and (2) Involuntary

What additional defenses are afforded to specific intent crimes?

(1) Voluntary intoxication; and (2) Unreasonable mistake of fact.

When can a state be sued?

(1) Waiver is permitted. Must be explicit. (2) State being sued pursuant to federal laws adopted under Sec. 5 of the 14th Amendment. (3) Federal government may sue state governments. (4) Bankruptcy proceedings.

Right to self-representation Requirements:

(1) Waiver of trial counsel if knowing and intelligent, and (2) Defendant is competent to proceed pro se.

What are two inquiries regarding consent in a torts case?

(1) Was there valid consent, and (2) Did the defendant stay within the boundaries of consent?

What is the 3-step approach to Equal Protection?

(1) What is the classification? (2) What level of scrutiny should be applied? (3) Does the law meet this level of scrutiny?

What are the 4 relevant character evidence questions?

(1) What is the purpose for which the character evidence is offered? (character at issue, circumstantial evidence of conduct, or impeachment?) (2) What method of technique is used to prove character? (Specific acts, opinion, or reputation?) (3) Is this a civil or criminal case? (4) Does the evidence prove a pertinent character trait?

When can a prosecutor use evidence of defendant's character?

(1) Where defendant has "opened the door," by using such evidence. (2) When the defendant is convicted of sexual assault/child molestation and the evidence is of past acts of sexual assault/molestation. (3) Where court has admitted evidence of victim's character offered by defendant and evidence is of the same character trait.

Where is a corporation always "at home"? (Personal Jurisdiction)

(1) Where incorporated and (2) Where the principal place of business is.

When is an absentee party necessary to the action?

(1) Without the party, the court cannot accord complete relief among existing parties; OR (2) Party's interest may be harmed if they are not joined; OR (3) Party claims an interest that subjects a party to a risk of multiple obligations.

Recorded recollection exception to hearsay rule (Requirement)

(1) Witness once had personal knowledge of the facts (2) Document was made by the witness, under the witness's direction or was adopted by the witness (3) Document was written or adopted at a time when the facts were fresh in the witness's memory (4) The document was accurate when made (5) The witness now has insufficient recollection to testify as to matters contained in the document.

Parol Evidence (Definition)

(1) Words of a party, (2) before integration, that are (3) oral or written.

Exceptions to Mootness

(1) Wrong capable of repetition, but evading review. (2) Voluntary cessation. If D voluntarily halts offending conduct, but is free to resume it at any time. (3) Class Action suits if Rep's claim becomes moot, provided at least one member has a claim.

Miranda Warnings

(1) You have the right to remain silent; (2) Anything you say can be used against you in court; (3) You have the right to an attorney; and (4) If you cannot afford an attorney, one will be appointed for you if you so desire.

What are the automatic categories of standing under the Fourth Amendment?

(1) You own the premises searched. (2) You live on the premises searched, whether you have ownership interest or not. (3) Overnight guests have standing to object to the legality of the search of the place they are staying.

We presume that a contract is a bilateral contract unless we are dealing with...

(1) a reward, prize, or contest; OR (2) an offer that expressly requires performance for acceptance.

Each conspirator is liable for ALL the crimes of co-conspirators if those crimes were...

(1) committed in furtherance of the conspiracy and (2) were foreseeable.

What can a court do if it agrees with a protective order?

(1) deny discovery, or (2) limit discovery, or (3) permit it on certain terms.

Malice Aforethought exists if there is...

(1) intent to kill; or (2) intent to inflict great bodily harm; 0r (3) intent to commit a felony; or (4) reckless indifference to an unjustifiably high risk to human life.

What are the Rule 12(b) defenses?

(1) lack of subject matter jurisdiction (2) Lack of personal jurisdiction (3) Improper venue (4) Improper process (problem with the papers) (5) Improper service of process (6) Failure to state a claim (7) Failure to join indispensable party

Under the intentional tort of false imprisonment, what are sufficient methods of restraint?

(1) physical barriers, (2) physical force, (3) threats of force, (4) failure to release, and (5) invalid use of legal authority.

Imputed DQ of former government lawyers

(1) screened off; (2) you do not share in any part of the fee in the matter; and (3) your government employer is informed.

To get a court order for a medical exam, you must show:

(1) that the person's health is in actual controversy and (2) "good cause".

Time is NOT of the essence in land sale contracts UNLESS

(1) the contact says otherwise or (2) the facts make clear that the parties intend that time of the essence.

Accomplices are liable for...

(1) the crime itself; and (2) all other foreseeable crimes.

Involuntary Intoxication Defense

(1) unknowingly being intoxicated, or (2) becoming intoxicated under duress.

Re: the Duty of Confidentiality, your duty to up hold the law allows revelations to protect (CA):

(1)Death/Substantial bodily harm (In CA you must if reasonable make a good faith effort to persuade client not commit act and inform the client of your decision to reveal his confidences. There is no "Financial Interest" Exception.

Incompetence exposes you to:

(a) Discipline by the Bar, (b) disqualification in a litigated matter, and (c) civil malpractice liability. CA: only subjects you to discipline if you intentionally, recklessly, or repeatedly fail to perform legal services with competence.

Prima Facie Case for Interference w/ Business Relations

1) existence of a valid contractual relationship b/t plf and a third party OR a valid business expectancy of plf 2) def's knowledge of the relationship or expectancy 3) intentional interference by def that induces breach or termination of the relationship or expectancy 4) damage to the plaintiff

Defenses to Solicitation

1) if the solicitor is protected by the statute/law (i.e., a minor in the case of statutory rape) 2) withdrawal is generally NOT a defense, BUT under MPC renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime.

Negligent Misrepresentation (Elements)

1) misrepresentation made by def in a business or professional capacity as to present/past fact; 2) breach of duty toward that particular plaintiff; 3) causation; 4) justifiable reliance; 5) damages (loss as a result of the reliance)

4 Elements to establish Constructive Eviction

1) the landlord's breach of a duty has left the premises uninhabitable; 2) the tenant gives the landlord notice and a reasonable time to repair; 3) the landlord fails to repair; and 4) the tenant vacates the premises within a reasonable time.

Unless a nonparty agreed, what is the farthest a deponent can be required to travel to have their deposition taken?

100 miles from residence or employer.

When must you implead?

14 days from serving your answer to have a right to implead. Otherwise, you need court permission to implead.

How is the existence of a racial/gender classification proven?

2 ways (even for benefits to minorities): (1) Classification exists on the face of the law; OR (2) If law is facially neutral, proving a racial classification requires demonstrating both (i) discriminatory impact and (ii) discriminatory intent. If both aren't met, then rational basis review is used.

P has a right to amend once within...

21 days after D serves her 1st Rule 12 response.

How long does a D have to respond to the complaint until default is entered against him?

21 days after being served with process; 60 days from mailing of waiver if you waived service.

D has a right to amend once within...

21 days of serving his answer.

What is the maximum number of interrogatories you can send to a party?

25, unless more are stipulated by court order.

When do you move for RJMOL?

28 days after judgment.

How many peremptory juror strikes does a party get?

3.

When must notice of appeal be filed?

30 days after entry of final judgment.

When must P move for remand if for some reason other than lack of SMJ?

30 days after notice of removal is filed by D.

How long does the party have in which to respond with her answers or objections?

30 days from service.

When must D mail back a waiver by mail?

30 days.

Tenancy by the Entirety Requirement

4 Unities Plus the Unity of Marriage.

4th Amendment + Probationers

4th Amendment is not violated by statutes authorizing warrantless searches of a probationer's house.

5th v. 6th Amendment right to counsel

5th: NOT offense specific. Attaches when suspects invokes Miranda rights. Applies to entire process of custodial interrogation. 6th: Offense specific (attorney need only be present for questioning about the specific case in which right has attached). Attaches at judicial proceedings.

How many jurors are on a civil jury in federal court?

6-12

Right to jury trial in federal court.

7th Amendment preserves right to jury in "civil actions at law," but not suits in equity. If a case involves both, the jury decides the facts underlying the damages claim (first), but not the equity claims (second). Does not apply to state courts.

Bona Fide Purchaser

A BFP is a purchaser who takes land without notice of a prior instrument and pays valuable consideration. Donees, heirs, and devisees are not BFPs.

Notice Statute

A Notice statute protects subsequent Grantee who are BFPs. Protects a subsequent purchaser for value who takes without notice of the earlier conveyance.

Third Party Standing (Con Law)

A P cannot assert claims of others, of third parties, who are not before the court. THREE EXCEPTIONS

What is consideration?

A bargained-for exchange of legal detriment in contract formation. Value of consideration need not be the same on each side, but each party must incur a detriment.

NIED + Bystander Liability

A bystander outside the "zone of danger" of physical injury who sees the D negligently injuring another can recover for damages for her own distress as long as: (1) the P and the person injured by the D were closely related, (2) the P was present at the scene of the injury, and (3) the P personally observed or perceived the event. Most jurisdictions also require that the bystander have physical injury from the emotional distress.

Statutory Standards of Care (Statutory borrowing)

A clearly stated specific duty imposed by a criminal statute may replace the more general common law duty of care if: (1) the plaintiff is within the protected class; and (2) the statute was designed to prevent the type of harm suffered by the plaintiff. Substitutes duty. Conclusive on breach if statute violated (Negligence Per Se).

Requirement Contract

A contract for the sale of goods in which a buyer states he will by all of his requirements from a seller.

Output contract

A contract for the sale of goods in which a seller states he will sell all of his output to one seller.

Contract definition

A contract is an agreement that is legally enforceable.

Unilateral contract

A contract that results from an offer that expressly requires performance as the only possible method of acceptance.

May parol evidence be used in conjunction with a mistake in integration?

A court may consider evidence of parol evidence for the limited evidence of determining whether there was a mistake in integration i.e., a mistake in reducing the agreement to writing.

Parol Evidence Rule + Mistake in Integration

A court may consider evidence of parol evidence for the limited evidence of determining whether there was a mistake in integration i.e., a mistake in reducing the agreement to writing.

Cy Pres Doctrine

A court may redirect a trust to a different charitable purpose that is as near as possible to the settlor's original intent.

Deed of Trust Definition

A deed of trust is a security interest in land by which the debtor (i.e., the trustor) transfers title to the land to a third party (i.e., the trustee) acting on behalf of the lender (i.e., the beneficiary). In the event of default, the lender instructs the trustee to foreclose the deed of trust by selling the property.

General Warranty Deed

A deed that contains six covenants—three present covenants (which are breached upon conveyance), and three future covenants (that are only breached, if at all, in the future). 1) covenant of seisin: grantor warrants that she has the estate or interest she purports to convey (i.e., both title and possession) at the time of the grant. Present covenant. 2) covenant against encumbrances: grantor warrants that there are no encumbrances (e.g., easements, profits, or mortgages) against the title or interest conveyed. Present. 3) covenant of right to convey: grantor warrants that she has the power and authority to make the grant (i.e., she has title or is the titleholder's authorized agent). Present. 4) covenant of warranty: grantor agrees to defend the grantee's title from any third party's lawful or reasonable claims of title and to compensate the grantee for any related loss. Because this covenant cannot be breached until a third party interferes with possession, it is a future covenant. 5) 6)

Land Sale Contracts—Delivery (Definition)

A deed will not transfer an interest in land unless it has been delivered by the grantor and accepted by the grantee. "Delivery" refers to the grantor's intent; it is satisfied by words or conduct showing that the grantor intended that the deed have a present operative effect--i.e., that title pass immediately and irrevocably, even though the right of possessing the land may be postponed until some future time. To make an effective delivery, the grantor must relinquish control.

Land Sale Contracts - Acceptance of a Deed

A deed will not transfer an interest in land unless it has been delivered by the grantor and accepted by the grantee. Regarding acceptance of a deed, courts generally will presume that a grantee accepts a deed if the conveyance would benefit her. In most states, acceptance is presumed if the conveyance is beneficial to the grantee, regardless of whether the grantee knows of it. In other states, acceptance is presumed only where the grantee knows of the grant and fails to reject it. Courts also will presume that a grantee accepts a deed if she is a minor. In all states, acceptance is presumed if the grantee is an infant or an incompetent.

Land Sale Contracts—Actions that Constitute Delivery

A deed will not transfer an interest in land unless it has been delivered by the grantor and accepted by the grantee. Title passes to the grantee upon effective delivery. Courts generally will presume that a grantee's possession of a deed means it has been delivered. Unless the grantor clearly expressed his intent that title pass to the grantee without physical delivery, the grantor's continued possession of the deed raises a presumption of nondelivery. Furthermore, if a grantor executes a deed but fails to deliver during his lifetime, no conveyance occurs.

Latent Defect

A defect that the Tenant does not know of and a reasonable person in the Tenant's position would not discover. Latent = hidden.

What burden of proof may a defendant bear?

A defendant may bear the burden of proof for an affirmative defense, but may NEVER bear the burden of proof for an element of the crime.

When does a deprivation of liberty occur?

A deprivation of liberty occurs if there is a loss of a significant freedom provided by the Constitution or a statute. Harm to reputation itself is not a deprivation of liberty.

When does a deprivation of property occur?

A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. An entitlement exists if there is a reasonable expectation to continue receipt of a benefit.

What must be presented to the court at the end of the Rule 26(f) conference?

A detailed discovery plan.

What is "collateral matter"?

A fact not material to the issues in the case that says nothing about witness' credibility other than to contract the witness.

Transfer of Venue Rules

A federal district court may transfer the case to another federal district court. It can only transfer to a district where the case could have been filed (Transferee must be a proper venue and have PJ over D). OR Court can transfer to any district if all parties consent and the court finds cause for the transfer.

General rule re: Fixtures

A fixture is a chattel that has been so affixed to the realty that it has ceased being personal property and has become part of the real property. Therefore, they cannot be removed by sellers or tenants.

Future Covenant for Title (definition)

A future covenant is not breached immediately. A future covenant is breached, if at all, at some later date when the Grantee is disturbed in possession. Future covenants do run with the land therefore can be enforced by all subsequent purchasers.

Grantee "Assumes" a Mortgage

A grantee who signs an assumption agreement promises to pay the mortgage loan, thus becoming personally and primarily liable to the lender. The original mortgagor becomes secondarily liable as a surety. If the proceeds of a foreclosure do not satisfy the debt, a mortgagee can thus bring a deficiency judgment against both the original mortgagor and the buyer who assumed the mortgage.

Judgment Creditor + BFP

A judgment creditor is a plaintiff who obtains a money judgment and can thus obtain a judgment lien on the defendant's real estate. The majority of cases hold that the judgment lienor is not protected as a BFP either because (i) he is not a BFP because he did not pay value for the judgment, or (ii) the judgment attaches only to property "owned" by the defendant, and not to property the defendant has previously conveyed away, even if that conveyance was not recorded.

Criminal defendant has a right to what kind of trial?

A jury trial.

Duty owed to users of recreational land

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowners willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Void for Vagueness

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. These laws violate due process.

Learned Treatise Hearsay Exception

A learned treatise is admissible to prove anything stated therein if it is an accepted authority in the field.

Overbreadth

A low is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Mortgage Definition

A mortgage is a security interest in real estate that secures an obligation, usually a promise to repay a loan, which is represented by a promissory note.

Mortgagee's Transfer of the Mortgage

A mortgagee who transfers her interest usually does so by endorsing the note and executing a separate assignment of the mortgage. While it is possible to transfer the note without the mortgage, the mortgage automatically will follow the properly transferred note. In this instance, no separate written assignment of the mortgage is necessary.

Foreclosure + Redeeming Land in Equity

A mortgagor may redeem her land in equity before the foreclosure sale by paying off the amount due, plus interest. A mortgagor may not redeem her land in equity after the foreclosure sale. However, about half the states provide a statutory right to redeem for some fixed period after the foreclosure sale has occurred (e.g., six months or one year). While a mortgagor may redeem her land in equity at any time before the foreclosure sale, this right cannot be waived in the mortgage itself. Doing so is known as "clogging the equity of redemption" and is prohibited. However, the right can be waived later, for consideration.

Mistake of Fact + Contract enforceability

A mutual mistake will render a contract unenforceable only if both parties are mistaken about an existing fact that is material and the person seeking relief does not bear the risk of the mistake. However, if only one party made the mistake, the contract will be enforceable unless the other party had reason to know of the mistake.

Default

A notation by the court clerk on the docket sheet of the case if D does not respond to the complaint in time (21 days after being served with process; 60 days from mailing of waiver if you waived service). P must move for default. Until default is entered, D can respond by motion or answer.

Novation (defense)

A novation is an agreement between BOTH parties to an existing contract to the substitution of a new party. i.e., same performance, different party.

Who can be ordered to undergo a medical exam?

A party or someone in the party's custody or legal control (very very narrow).

Indispensable party

A party that is so necessary that it's inability to be joined in the case causes the case to be dismissed.

What is a peremptory challenge in jury selection?

A peremptory challenge is a challenge to exclude a prospective jury for any reason whatsoever (WITH TWO EXCEPTION).

Periodic Tenancy

A periodic tenancy is a tenancy that continues from period to period until terminated by proper notice by either the landlord or the tenant.

What constitutes a "public figure" in Constitutional Defamation cases?

A person becomes a "public figure" by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.

Necessity defense (Torts)

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.

Quasi-Contract + Necessary

A person who does not have capacity is legally obligated to pay for things that are necessary, but that liability is based on quasi-contract law, not contract law.

Present Covenant for Title (definition)

A present covenant is breached, if at all, at the moment the conveyance is made; and therefore the Buyer can sue on a present covenant immediately. These three present covenants are personal to the Grantee and do not run with the land.

Private Actors + Fourteenth Amendment Protections

A private party will be subject to the requirements of the Fourteenth Amendment where the private entity a) was performing exclusively public functions, or b) took actions with significant state involvement.

Right to use force + Arrest (Criminal)

A private person has the right to use deadly force to effectuate an arrest when the felon appears to pose a threat to the person or to others and deadly force is necessary to prevent this escape, as long as the felon was actually guilty of the felony. A private person the right to use deadly force in preventing the completion of a crime being committed if the crime is a "dangerous felony" involving risk to human life.

Inadequate warnings (definition)

A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users.

Standard of care for Professionals

A professional or someone with special occupational skills is required to possess the knowledge and skill of a average member of that same profession performing similar services. Obligation to conform/do what others do (profession's custom sets the standard of care). Majority rule: national standard of care; no "community" standard.

How does one secure standing under the Fourth Amendment?

A reasonable expectation of privacy has been violated.

Is mistake allowed in self-defense? (Torts)

A reasonable mistake as to the existence of the danger is allowed.

Is mistake allowed in defense of others?

A reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted.

Is mistake allowed in defense of property (torts)?

A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged.

Malice

A reckless disregard of an obvious or high risk that a particular harmful result might occur from the conduct

Vested Remainder

A remainder is vested if nothing stands in the way of its becoming possessory on the natural expiration of the preceding estate (i.e., taker is ascertainable and no condition to taking).

Conflicts b/t or among Clients: Opposing current client in another matter

A representation adverse to a current client in a different matter requires all clients' consent. CA statutory exception: No conflict when lawyer representing policyholder and insurance company as joint clients, where insurer's interest in each matter is only as an indemnity provider.

Duty re: Rescuers

A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril. However, firefighters and police officers may be barred by the "firefighter's rule" from recovering for injuries caused by the risks of a rescue.

Reversion (Creation)

A reversion is the future interest retained by a grantor who conveys a lesser estate than the grantor owns.

Riparian Rights General rules

A riparian owner may use all the water needed for domestic purposes. Limited to reasonable use for non-domestic purposes.

UCC Article 9 Fixture Filing

A seller of a fixture who provides a purchase money security interest in the chattel must make a UCC Article 9 fixture filing within 20 days after attachment. If the seller made the filling the seller may remove the fixture without regard to the priority of earlier mortgages. If the filings is not timely made, then the seller's security interest is subordinate to the earlier mortgage on the property.

Cure (Contracts)

A seller who fails to make a perfect tender will be given a "second chance," an option of curing.

Voluntary Subordination (Mortgages)

A senior mortgage may agree to subordinate to a junior mortgage.

Shoplifting Detentions (Torts)

A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied: (i) there must be a reasonable belief as to the fact of theft; (ii) the detention must be conducted in a reasonable manner and only non-deadly force can be used; and (iii) the detention must be only for a reasonable period of time and only for the purpose of making an investigation.

Amount in controversy + Aggregation

A single P can aggregate all claims (including factually unrelated) against a single D. Cannot aggregate the claims of multiple plaintiffs against a D. For joint claims (against multiple Ds), P can aggregate the total value of the claim. Claims for equitable relief meet the requirement is either (1) the activity at issue decreases value of P's property by more $75,000 or (2) it would cost D more than $75,000 to comply with equitable relief.

Traffic Stops + Police Dogs

A sniff is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries. Sniff can create probable cause for a search.

What is the limited exception to the rule "First assignee for consideration wins"?

A subsequent assignee takes priority over an earlier assignee for value only if he both (1) does not know of the earlier assignment and (2) is the first to obtain (i) payment, (ii) a judgment, (iii) a novation, or (iv) indicia of ownership.

Treaty

A treat is an agreement between the U.S. and a foreign country that is negotiated by the President and is effective when ratified by the Senate.

Creation of a Trust

A trust can be created inter vivos by deed OR by a will at death.

When does juror misconduct exist such the the court can set aside the verdict and order a new trial?

A verdict may be "impeached" based upon "external" matters. A juror cannot testify about things occurring or statements made during jury deliberations, except to show "outside influence".

Implied Warranty of Merchantability (Rule)

A warranty of merchantability is implied in a sale by a merchant who deals in goods of the kind sold; the warranty is that the goods are generally fit for the ordinary purposes for which such goods are used.

Rules re: Permissive Intervention

A's claim or defense and the pending case have at least one common question. Discretionary with the court.

Rules re: Intervention of Right

A's interest may be harmed if she is not joined and is not adequately represented now.

Trial Counsel as a necessary witness (PR)

ABA bars you from appearing as counsel and witness in the same trial unless: (i) your testimony is uncontested or (ii) about your legal services or (iii) if your distinctive value to the case means withdrawal would impose substantial hardship on the client. If testimony might prejudice the client, consent is required , and the conflict is imputed to colleagues. CA: Less restrictive. You may testify in bench trial and if client consents, in jury trial.

Loans to your client (PR)

ABA forbids ALL financial assistance, EXCEPT (1) litigation expenses for an indigent client and (2) the advance of litigation expenses in contingent fee cases. CA forbids promise to pay a PROSPECTIVE client's debts, but ALLOWS loans to a client in ALL matters for ANY purpose with a written loan agreement.

Multi-Jurisdictional Practice Rules (PR)

ABA: Allow you to temporarily practice out of state if you are in good standing and (i) you associate with locally admitted lawyer who actively participates in the matter, or (ii) the services relate to alternative dispute resolution, or (iii) the matter is reasonably related to your home state practice and the forum does not require a pro hac vice appearance. CA: More restrictive. Generally requires lawyer to register with CA Bar, pay dues, get continuing legal education, and be subject to CA ethics rules.

What does Solicitation extend to? (PR)

ABA: Extends to real time electronic contact. CA: Live or telephone read narrowly; not extended to real time electronic contact.

Publication rights contracts (PR)

ABA: Lawyers cannot secure the rights to his client's story before the representation has ended. CA: MAYBE. CA law discourages contracts during proceedings, but allows them if the judge is satisfied that the client clearly understands and consents.

"Reporting Up" and "Reporting Out" for Organizational Clients (PR)

ABA: Mandated reporting up and permissive reporting out. CA: More restrictive confidentiality rules are preempted by federal securities laws.

Policing misconduct (PR)

ABA: Must report any other judge or lawyer violating rules in any context if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer. CA: No external reporting required, but you can be disciplined for knowing about colleague's violating and doing nothing to prevent it. Required to self-report if charged with felony, convicted of serious crimes, or found civilly liable for fraud/breach of fiduciary duty, disciplined or sanctioned, or sued for malpractice 3x a year.

Sexual Relations (PR)

ABA: Prohibits consensual sex with your client unless you had a pre-existing sexual relationship. CA: Excuses pre-existing relationships, but allows new relations with cautions.

Limits on contingent fees (PR)

ABA: Prohibits contingent fees in domestic relations and criminal cases. CA: Silent and its case law allows contingent fees in domestic cases if they don't "promote dissolution" of a savable marriage.

Fees must be...(PR)

ABA: Reasonable, taking into account the labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement, etc. CA: NOT be unconscionably high.

Duty to expediate cases:

ABA: You have an affirmative duty to expediate cases. CA: You must not delay cases to harass an adversary, or for your own personal gain or convenience. Duty to follow valid procedural rules and court orders, unless you are making a good faith challenge to their validity. Do not abuse or obstruct discovery.

Attorney-Client Privilege v. Duty of Confidentiality

ACR is narrower, but overlapping; allows client to prevent you from testifying about confidential communication from her to you. Confidentiality is broader: it applies regardless of the source of the information, to anything not generally known and to disclosures beyond the representation that could reasonably lead to information about it.

How is Confrontation Clause not an absolute right?

Absence of face-to-face confrontation b/t the defendant and accuser does not violate the 6th Amendment when preventing such confrontation services (1) an important public purpose and (2) the reliability of the witness testimony is otherwise assured. (3) Defendant who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation.

Sale of Goods + Accomplice liability

Absent a statute, most courts would hold that mere knowledge that a crime may result form the aid provided is insufficient for accomplice liability, at least where the aid involves the sale of ordinary goods at ordinary prices.

What are the two privilege defenses in Defamation (torts)?

Absolute Privilege: Can never be lost. Conferred based on who D is. Defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in "compelled" broadcasts and between spouses. Qualified Privilege: Can be lost through abuse. Includes the following: reports of official proceedings; statements in the interest of the publisher--defense of one's actions, property, or reputation, statements in the interest of the recipient, and statements in the common interest of the publisher and recipient. Two requirements to stay within the privilege: (1) Must have reasonable and good faith basis in what you say; and (2) Need to confine yourself to material relevant at hand.

Equitable Mortgage

Absolute deed with separate promise of reconveyance. Treated like a mortgage.

Mailbox Rule

Acceptance of an offer is generally effective upon dispatch. If a rejection is mailed before an acceptance is mailed, then neither is effective until received. The mailbox rule cannot be used to meet an option deadline.

Difference between Accord/Satisfaction and Modification

Accord/Satisfaction is created by "if, then" and Modification is created by "instead". Accord/Satisfaction allows recovery on the original agreement; Modification does not allow recovery on the original agreement.

M.I.M.I.C. Evidence

Acronym that provides when specific instances of defendant's bad conduct may be admitted. Judge still has discretion to exclude MIMIC evidence for unfair prejudice. (1) Motive (2) Intent (3) Mistake (Absence of Mistake) (4) Identity (5) Common Plan or Scheme

Intrusion on P's Affairs or Seclusion

Act of prying or intruding that is highly offense to a reasonable person. Thing being intruded upon must be "private"

"But For" Test of Causation in Fact

Act or omission is the cause in fact of an injury would the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury. Not used when multiple defendants implicated.

Privilege of Arrest (Torts)

Actor may have a privilege to make an arrest of a third person. Privilege carries with it the privilege to enter another's land for the purpose of effecting the arrest.

Rules re: Impeachment with Non-Conviction Misconduct Evidence Bearing on Truthfulness

Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases if the acts involved lying. Extrinsic evidence to prove the acts is inadmissible. Impeacher only may cross-examine witness about her conduct.

What type of damages are required for Trespass to Chattels?

Actual damages--not necessarily to the chattel, but at least to a possessory right--are required.

Breaking (Burglary) can be...

Actual or Constructive.

Who are always voluntarily intoxicated?

Addicts and Alcoholics.

EXCEPTION to Ademption

Ademption doctrine generally does apply to a gift of property that was subject to an executory contract of sale at the time of the testator's death; instead, the devisee will receive the proceeds from the sale of the property.

Most common independent source for denial of due process (Pre-trial identification)

Adequate opportunity for victim/witness to observe the defendant at the time of the crime.

When will a lay opinion be admissible?

Admissible if rationally based on the witness's perceptions and "helpful" to the trier of fact. Cannot be based on scientific or other specialized knowledge. "Helpful": Lay opinion gives jury MORE information than would testimony limited to describing witness's perceptions.

When can a party first request discovery from other parties?

After a Rule 26(f) conference.

When can a party move for JMOL?

After other side has been heard at trial.

When will a court not disturb a guilty plea?

After sentencing.

Party's admit to supplement (discovery)

After you respond to discovery, circumstances in the real world change. In light of these new circumstances, your response to a required disclosure, interrogatory, request for production, or request for admission is now incomplete or incorrect. You must supplement your response. No one has to ask you to do something.

Agreement requirement for conspiracies

Agreement needn't be express; intent can be inferred from conduct.

Conspiracy (Definition)

Agreement with intent to agree and intent to pursue unlawful objective.

Who must join in a motion to remove?

All D's who have been served with process.

Under Common Law, what types of breach allow for recovery of damages?

All breaches.

Rules re: Impeachment with Conviction for Crime Involving False Statement

All convictions for crimes of false statement are admissible. NO BALANCING of unfair prejudice against probative value EXCEPT for convictions more than 10 years old. If it is more than 10 years old, it is inadmissible unless probative value outweighs unfair prejudice. If conviction is otherwise admissible, conviction may be proved by extrinsic evidence.

What are the General Intent crimes?

All crimes that are not Specific Intent, Malice, or Strict Liability crimes.

Involuntary intoxication is a defense to...

All crimes.

Who is a duty of care owed to?

All foreseeable plaintiffs. Cardozo: Plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances.

Unity of Time

All joint tenancy interests must have vested at the same time.

Unity of Possession

All joint tenants must have the same/identical rights of possession; i.e., each has the right to possession of the whole and cannot exclude the other(s).

Unity of Interest

All joint tenants must take the same kind and same amount of interest.

Implied Covenant of Quiet Use and Enjoyment

All leases contain an implied covenant that neither the landlord nor someone with paramount title will interfere with the tenant's quiet enjoyment, use, or possession of the premises. This covenant may be breached through actual, partial, or constructive eviction.

Who is bound by the judgment in a certified class action?

All members of the class except those who opt out of a type 3 "damages" class action.

What is the general rule of "mixed deals" contracts?

All or nothing: apply common law if the non-goods aspect of the contract is more important; apply UCC Article 2 is the sale of goods aspect is more important. ONE EXCEPTION

What is the exception to the rule that transferee courts must have originally been proper venues?

All parties consent and the court finds cause for the transfer.

10th Amendment

All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

Tickets as Licenses

All tickets are licenses. Ticket holders do not acquire any property right in the ticket, although they may sue for damages for breach of contract.

Pure Comparative Negligence

Allow recovery for P no matter how great his negligence was.

Contract Assignment

Allowable.

Attempt Abandonment (MPC View)

Allowed as a defense only if (1) it is fully voluntary and (2) a complete renunciation of criminal purpose.

Where is remittur allowed?

Allowed in state and federal court.

Contribution

Allows a D who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for the excess. Apportions responsibility among those at fault.

Will courts enforce valid forum selection clauses?

Almost always. Parties are deemed to have agreed that the private factors support litigation in that district.

Title + Adverse Possession

Although title vests in the adverse possessor once the statute of limitations has run, the title acquired is not marketable. To make it marketable title, there must be a court action to quiet title.

When does the duty of confidentiality apply?

Always, regardless of whether the client requested it be kept "confidential" or whether its revelation might harm or embarrass the client.

When is a delegating party liable under delegation?

Always.

How does P charge a D after the statute of limitations has run?

Amended claim will relate back if (P sued the wrong D first, but the right D knew about it). : (1) It concerns the same conduct, transaction, or occurrence as the original; (2) The new party knew of this case within 120 days of its filing; and (3) She also knew that, but for a mistake, she would have been named originally.

Amended v. Supplemental pleadings

Amended pleadings are about things that happened before the pleading was filed but where not asserted until later. Supplemental pleadings set forth things that happened after the pleading was filed.

Rules re: Amendment pleadings + relating back

Amendment pleadings "relate back" if they concern the same conduct, transaction or occurrence as the original pleading.

Tacking (Adverse Possession)

An adverse possessor can tack together successive periods of adverse possession in order to satisfy the statutory period. However, tacking is not allowed if there are gaps in possession!

Equitable Mortgage Definition

An equitable mortgage exists if a court concludes that a grantor transferred an absolute deed to serve as security for an obligation. The court will consider: (i) The existence of a debt or promise of payment by the grantor; (ii) The grantee's promise to return the land if the debt is paid; (iii) Whether the amount advanced to the grantor was much lower than the value of the property; (iv) The degree of the grantor's financial distress; and (v) The parties' prior negotiations.

Doctrine of Part Performance

An exception to the statute of frauds; we will enforce land sale even though contract was not in writing. Two requirements must be met: (1) Oral contract must be certain and clear; and (2) the acts of partial performance must clearly prove up the existence of contract.

Executive Agreement

An executive agreement is an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation.

Trust

An express private trust is created, in writing, by a settlor who transfers title to real property to a trustee, who holds and manages the property subject to a fiduciary duty to use the highest care and skill for the benefit of the beneficiaries of the trust.

Exception to Intentional Interference w/ Business Relations

An individual is allowed to attempt to obtain business through legitimate means.

What is an expert witness?

An individual who, because of special skill or training, may give opinion testimony. Hired to render an opinion in this case.

Installment Land Contract Definition

An installment land contract is a security interest in land in which the debtor (i.e., the buyer) contracts with the seller to pay for the land in regular installments until the full contract price has been paid, plus interest. Only then will the seller transfer legal title to the buyer. The contract may contain a forfeiture clause providing that the seller may cancel the contract upon default, retain all money paid, and retake possession of the land, and such clauses are generally enforceable.

UCC Firm Offer Rule

An offer cannot be revoked for up to 3 months if (1) it is an offer to buy or sell goods; (2) is a signed, written promise to keep the offer open; and (3) the offeror is a merchant. If no time period is stated, it may be supplied by the courts.

Option Ks and Revocability

An offer cannot be revoked if the offeror has not only made an offer but also (1) promise not to revoke AND (2) this promise is supported by payment or other consideration. OFFER +2.

Reliance and Offer Revocability

An offer cannot be revoked if there has been (1) reliance that is (2) reasonable foreseeable and (3) detrimental.

What happens if there are vague/ambiguous material terms in a contract?

An offer does not exist under either common law or the UCC if "appropriate, fair, or reasonable" is used. However, if we are dealing with a requirement/output contract ("all, only, exclusively, solely"), then the contract is not vague or ambiguous.

Terminating an Offer via Lapse of Time

An offer may be terminated if the offeree fails to accept either within a stated time or, if no stated time, a reasonable time from the time the offer was given.

How is a unilateral contract created?

An offer that expressly requires performance as the only possible method of acceptance.

Good Faith Defense (Fourth Amendment)

An officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.

Preliminary Injunction Definition

An order than maintains the status quo.

Criminal defendant has a right to what kind of judge?

An unbiased judge.

Negligence per se

An unexcused statutory violation under statutory borrowing is a conclusive presumption of duty and breach of duty.

A warrant can be based in part on, but not solely on an...

Anonymous tip.

Effect of Anticipatory Repudiation

Anticipatory Repudiation by one party excuses the other party's duty to perform. Claim for damages may be immediate if the claimant has not finished performance.

Retraction of anticipatory repudiation

Anticipatory Repudiation can be withdrawn so long as there has not been a material change in position by the other party. If the repudiation is timely retracted, the duty to perform is reimposed but performance can be delayed until adequate assurance is provided.

Anticipatory Repudiation + Timing

Anticipatory Repudiation generally gives rise to an immediate claim for damages for breach unless the claimant has already finished her performance.

Difference between Anticipatory Repudiation and Insecurity

Anticipatory Repudiation requires an unambiguous statement the the party cannot perform. Insecurity requires only reasonable grounds.

Tenancy for Years + Statute of Frauds

Any TfY for over 1 year must be in writing.

What are some "acts of conversion"?

Any act involving wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel.

When can cases be removed to federal court?

Any case that meets the requirements for diversity or federal question jurisdiction. BUT--there are 2 exceptions if we are removing on the basis of diversity. (1) No removal if D is a citizen of the forum AND (2) No removal more than one year after the case was filed in state court.

A D who is "at home" in the forum state can be sued there for what?

Any claim that arose anywhere in the world.

Interrogation (Miranda)

Any conduct where the police knew or should have known they might elicit an incriminating response from the suspect.

Statute of Frauds

Any contract for sale of any interest in real property must be in writing and signed by the one who is sued. Signed writing must include (1) description of the property, (2) names of the parties, and (3) price.

In regards to Third-Party Beneficiaries, what defenses can a promisor assert against the beneficiary?

Any defense that he would have had if sued by the promisee.

What is "extrinsic evidence" (impeachment)?

Any evidence other than testimony given at this proceeding by the witness being impeached.

General rule re: Tenancy by the Entirety

Any grant of a concurrent estate to a Husband and Wife would give rise to a Tenancy by the Entirety provided the 4 unities were present.

Imputed Disqualification

Any groups of lawyers that work together closely or share responsibilities share each others' conflicts.

Felony Murder Definition

Any killing (even accidental) committed during the course of a BARRK or enumerated felony so long as the felony was independent of the killing and the death was a foreseeable result of the felony.

What constitutes an "Overt Act" (Conspiracy)?

Any little act in furtherance of conspiracy; even mere preparation.

What releases an original grantee from a mortgage?

Any modification of the mortgage obligation by the Grantee and the subsequent mortgage.

Who can serve Process?

Any nonparty who is at least 18 years old.

Easements Appurtenant

Any time the easement directly benefits the use and enjoyment of a specific parcel of land, it is classified as an easement appurtenant.

RAP is NOT applied to...

Any vested interest (outside of best remainder not subject to open).

Which writings are subject to the crime of forgery?

Any writing that has apparent legal significance.

Shelter Rule Exception

Anyone (even heirs, donees, or devisees) can shelter under the rights of a BFP. Thus, under the shelter rule, a person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against.

Who may pursue a claim for Trespass to Land?

Anyone in actual or constructive possession of the land.

Commercial Supplier Definition (Strict Products Liability)

Anyone in the chain of distribution of the product.

What can be used to refresh recollection?

Anything. But, opponent may inspect and offer into evidence anything used to refresh.

When does the constitutional right to jury trial attach?

Anytime Defendant is tried for an offense for which the maximum authorized sentence exceeds 6 months.

When can non-deadly self-defense be used?

Anytime a victim reasonably believes that force is about to be used on him.

When is quasi contract applies?

Anytime contract principles produce unfair results.

When can you bring the defense of failure to join an indispensable party?

Anytime through trial.

When can you bring the defense of failure to state a claim?

Anytime through trial.

When can you bring the defense of lack of SMJ?

Anytime until all appeals have been exhausted.

When must a motion for relief from order be filed on "clerical error" grounds?

Anytime.

When must a property owner purchase a property in order to challenge a regulation as a taking?

Anytime. Property owner may bring a takings challenge to regulations that existed at the time the property was acquired.

When must P move for remand if P believes federal court lacks SMJ?

Anytime; court MUST remand if there was no federal SMJ.

Where can you personally serve a D?

Anywhere

What is the "collateral order" exception to interlocutory review?

Appellate court has discretion to hear ruling on an issue if it: (1) is distinct form the merits of the case, (2) involves an important legal question, and (3) is essentially unreviewable if parties must await a final judgment.

Applying RAP + Deed

Applied at the time deed takes effect.

Applying RAP + Wills

Applied at the time of Testator's death--when will takes effect.

Dormant Commerce Clause

Applied when a state or local entity is trying to take action. State or local law is unconstitutional if it places an undue burden on interstate commerce. If a law does not discriminate against out-of-staters and it burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits (e.g., truck mudflap case). If the law discriminates against out-of-staters and burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government. TWO EXCEPTIONS.

Termination of Easements created by necessity

Applies only to easements by absolute need (landlocked easements). Once the necessity that gave rise to an implied easement ceases to exist, then the implied easement will automatically terminate.

To what does the Contract Clause apply?

Applies only to state or local interference with existing contracts.

Rule 11 Application

Applies to all documents except discovery.

When does Article 2 of the UCC apply?

Applies to contracts that are primarily for the sales of goods.

Implied warranty of merchantability.

Applies when any person buys any goods from any merchant. A term is automatically added to the contract by operation of law--that the goods are fit for ordinary purpose for which such goods are used.

Privileges and Immunities Clause of Art. 4

Applies when states discriminate against out-of-staters. No state may deprive citizens of other states of privileges and immunities given to its own citizens. If the law discriminates against out-of-staters with their fundamental rights or ability to earn their livelihood, it violates the P and I clause of Art. 4 unless it is necessary to achieve an important government purpose.

What must a court do when it certifies the class action?

Appoint class council.

What are vague/ambiguous material qualifiers that fail to create an offer in contract law?

Appropriate, fair, reasonable. Does NOT include "all, only, exclusively, solely" in requirements/output contracts.

Statutory Right of Redemption

Approximately half the states allow the mortgagor a statutory right to redeem the property for some fixed period of time after the foreclosure sale has occurred.

Constructive (Record) Notice

Arises from the fact that the document creating the easement/covenant/etc is duly recorded in the buyer's direct chain of title.

Compulsory Counterclaim

Arises from the same T/O as P's claim. Unless you have already filed the claim in another case, YOU MUST FILE THIS IN THE PENDING CASE, OR THE CLAIM IS WAIVED.

Tenancy at Sufferance

Arises in ONLY one situation: Refers to the bare possession that a tenant has of the property when that tenant wrongfully holds over.

Express Warranty (Rule)

Arises when a seller makes an affirmation of fact or promise to the buyer relating to the goods that becomes part of the basis of the bargain.

Consent Implied by Law

Arises when action is necessary to save a person's life or some other important interest in person or property.

What defines Congress's power?

Article 1

What provides the Executive power?

Article 2.

How do you know whether a former client representation will create a conflict with a new client representation (PR)?

Ask: Do the representations overlap in function, scope or information?

Solicitation (Definition)

Asking someone to commit a crime. Under Common Law, that person needn't agree to commit crime.

Aggravated Assault

Assault + (1) use of deadly/dangerous weapon; OR (2) intent to rape/maim/murder.

Assignment v. Delegation

Assignment is the transfer by a party to a contract of his rights or benefits under the contract to a third party who was not a party to the contract. Delegation is the transfer by a party to a contract of his duties or burdens under the contract to a third party who was not a party to the contract.

What kind of assignment is never a substantial change?

Assignment of right to payment.

Right of Redemption

At any time--right up until the moment of the foreclosure sale--the Debtor can redeem the property by paying the amount that is due and payable (amount in arrears) plus interest--unless the mortgage includes an "Acceleration Clause"

Lapse

At common law, if the beneficiary died before the testator, the gift lapsed--the gift was void.

Exoneration (Common Law)

At common law, if the devised property was subject to a mortgage or other lien, that lien had to be exonerated from the testator's estate--devisee was entitled to have lien paid off rom the testator's residuary estate and that property would pass to the devisee free of the lien.

Doctrine of Equitable Conversion

At common law, the buyer bears the risk of loss in a land sale contract based on the doctrine of equitable conversion. Under this doctrine, once the contract is signed equity treats the property as buyer's land and therefore buyer bears the risk of loss. ONLY APPLIES IF SELLER IS NOT AT FAULT.

When does a Rule 26(f) conference take place?

At least 21 days before scheduling conference.

Importance of Seisin

At the moment that each and every conveyance of Blackacre takes effect, property law wants to know who has seisin at all times and under all possible circumstances.

M'Naghten Rule

At the time of his conduct, defendant lacked the ability to know the wrongfulness or understand the nature and quality of his actions.

When is RAP applied?

At the time the conveyance is made/the time the interest is created.

Overt Act: Attempt v. Conspiracy

Attempt requires a much more substantial step than Conspiracy (any little act will do). Mere preparation cannot ground liability for attempt, but it can for conspiracy.

Clogging the equity of redemption

Attempt to waive the right to redemption in the original mortgage or Deed of trust; prohibited.

If you have completed a crime, you cannot be convicted of...

Attempting or Soliciting that crime.

Necessary and Proper Clause

Authority to adopt all laws necessary and property to effectuate power. McCulloch: Congress may choose any means not prohibited to effectuate its power.

Police power

Authority to do anything not prohibited by the Constitution.

When does the law require that authorization to execute a contract for someone else be in writing?

Authorization must be in writing only if the contract to be signed is within the Statute of Frauds. Otherwise, contract law does not require written evidence of someone's authority to act on someone else's behalf.

Right or Survivorship

Automatically on the death of a joint tenant.

Contractual damages are reduced by...

Avoidable Damages and Uncertain Damages

"Knowingly" Mental State

Aware that conduct will very likely cause the result.

One who purports to take property as an heir, devisee, or donee cannot be a...

BFP and therefore cannot prevail over a claim of an earlier Grantee.

If a deprivation of life, liberty or property has occurred--what process is required?

Balancing Tests (1) Importance of the interest to the individuals (more important, more process required). (2) The ability of the additional procedures to increase the accuracy of fact-finding (ability to reduce risk of erroneous deprivation). (3) The government's interests (usually in efficiency).

When will court order transfer?

Balancing public and private factors showing that the transferee is the center of gravity. Public: Things like what law applies, what community should be burdened by jury service, the desire to keep a local controversy in the local court. Private: convenience (e.g., where evidence and witnesses are).

Partial Comparative Negligence

Bars P's recovery if his negligence was more serious than D's negligence (> 50%).

What are the "offenses against the person"?

Battery, Assault, Aggravated Assault, Homicide, False Imprisonment, Kidnapping

What are the intentional torts to the person?

Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress

Why is hearsay generally inadmissible?

Because the speaker ("declarant") cannot be cross-examined when she speaks out of court. Without cross-examination, we cannot tell if declarant is lying or mistaken about facts in her statement. HOWEVER--this is a problem only if evidence is used to prove those facts (if it is used to prove anything else, no cross-exam is needed b/c it does not matter if declarant is lying or mistaken about facts we are not trying to prove).

Solicitation + Agreement to Commit

Becomes a Conspiracy and Solicitation merges with Conspiracy.

When must a P file a "notice of dismissal" (and voluntarily dismiss the case)?

Before D serves an answer or motion for summary judgment.

Conversing with Jurors (PR)

Before and during trial you must not talk to any prospective or impaneled juror. After trial is over you may interview consenting jurors.

When will a court provide a second "opt out" opportunity to Type 3 class members?

Before approving settlement.

When does a seller complete its delivery obligation in a shipment contract?

Before delivery is completed.

Inventory Search Rules

Before incarceration of an arrestee, the police may search (1) arrestee's personal belongings and/or (2) arrestee's entire vehicle.

Tenancy for Years must specify

Beginning and Ending date.

Dominant Estate

Benefited property in an easement appurtenant

What is a "biased judge"?

Bias meanings having a financial interest in the outcome of the case or some actual malice against the defendant.

Common Law/Traditional Intent (Conspiracy)

Bilateral Approach

What types of non-testimonial evidence can prosecution compel a person to produce?

Blood, handwriting, voice, and hair samples.

What are the similarities/differences b/t the 2 categories of restrictive covenants (equitable servitudes v. real covenants)?

Both involve a written promise that imposes a restriction on the use of the land. The ONLY difference is the theory used to enforce the terms of the restriction.

Common Law v. UCC on Conditional Acceptance

Both reject the offer. However, under common law, a counteroffer is also creates that can be accepted by conduct.

Specific Performance + Land Sale Contract

Both the buyer and the seller generally are entitled to specific performance of a land sale contract. A court of equity will order a seller to convey title if the buyer tenders the purchase price. The remedy at law, damages, is deemed inadequate because land is unique.

Burglary

Breaking and entering of a dwelling of another at night with the intent to commit a felony therein.

Constructive Breaking (Burglary)

Breaking by fraud or threat.

Preliminary Injunction requirements

Burden is on Applicant to show: (1) He is likely to suffer irreparable harm if injunction not issued; (2) He is likely to win on the merits of the underlying case; (3) The balance of hardship favors him (threatened harm to applicant outweighs harm to the other party is injunction is issued); and (4) The injunction is in the public interest.

Servient Estate

Burdened property in an easement appurtenant

Arson applies to...

Burning and Charring. Smoke Damage and scorching not included.

Attempting to increase requirements in a requirement contract

Buyer can increase requirements so long as the increase is in line with prior demands. No unreasonably disproportionate limitation on increases.

What does a Buyer do if they determine the Seller's title is not marketable?

Buyer must NOTIFY the Seller of any defect in title AND allow the Seller a reasonable time to cure the defect--even if that means postponing the day for closing.

Death of the Seller before close of Escrow

Buyer will close the sale with the seller's estate. Buyer will deliver the purchase price to Seller's Estate. Seller's interest is in personal property (the purchase price).

How can a D respond to a complaint?

By motion or by answer (Rule 12).

Imputed DQ penalties (CA)

CA disqualifies, but does not discipline, a lawyer for imputed conflicts.

Imputed DQ for purely personal conflicts (CA)

CA does not impute purely personal conflicts to colleagues.

Threats to bring disciplinary, administrative, or criminal proceedings as leverage in a civil dispute (PR)

CA forbids them.

Solicitation and vulnerable clients (PR)

CA: Presumes improper communications made at the scene of an accident or en route to a medical facility, and to potential client that you should know are not in the physical or mental state to exercise reasonable judgment.

What should you never borrow from or commingle with?

CLIENT FUNDS.

Conspiracy Withdrawal

Can NEVER relieve defendant from liability for conspiracy itself. Only allowed for liability for co-conspirators' subsequent crimes.

What is the question of Personal Jurisdiction?

Can P sue D in this state?

Limitations of peremptory juror strikes.

Can only be down 3 times and may only be used in a race and gender-neutral manner.

Against whom can collateral estoppel be used?

Can only be used against somebody who was a party in Case 1.

Defense of Others

Can raise defense if you reasonably believe person assisted would have had the right to use force in his own defense. There MAY need to be a special relationship between the parties (Minority rule).

Duties owed to entities other than your client (PR)

Candor/truthfulness, Fairness, Dignity/Decorum and others.

Free Exercise Clause rules

Cannot be used to challenge a neutral law of general applicability. The government may not deny benefits to individuals who quit their jobs for religious reasons. The government may not hold a religious institution liable for the choices it makes as to who will be its ministers.

Duty of Candor to the Court; Duty of Fairness to your Adversary

Cannot engage in conduct involving dishonesty, fraud, or misrepresentation. Even within our adversarial system these duties can trump conflicting duties of confidentiality and loyalty to your client.

What happens if a party fails to disclose document/thing she was required to identify in initial disclosure?

Cannot use that material in the case.

What are the few exceptions for cases that State courts can't hear?

Cases arising under a few federal laws must be brought in federal courts: patent infringement, bankruptcy, some federal securities and antitrust claims.

Denial of due process (Pre-trial identification)

Certain pre-trial identification techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law.

Purpose of Recording statutes

Change the common law, "First in time, First in right." Protect the interests of subsequent purchasers. Let the subsequent purchaser keep the property--provided that the subsequent purchaser can meet the requirements of the applicable recording statutes.

When is character evidence inadmissible in a civil case?

Character evidence is inadmissible to prove conduct (except where claim based on sexual assault/molestation).

When is character evidence admissible in a civil case?

Character evidence usually inadmissible to prove conduct, but character evidence is admissible to prove conduct where claim is based on sexual assault/molestation (prior acts are admissible to prove conduct). Also admissible where character is in issue. All methods are allowable.

Exceptions to Reasonable Suspicion requirement of automobile stops.

Check Point Roadblocks: No reasonable suspicion required as long as stops are neutrally applied.

Standard of care for Children

Children b/t 5 and 18 are held to the standard of a child of like age, education, intelligence, and experience acting under similar circumstances. This is a subjective test. Child under 5 is incapable of negligence (no duty owed).

What is the exception to the standard of care for Children?

Children engaged in adult activity revert back to the RPP standard. Adult activity is usually a dangerous activities done by adults.

What types of plaintiffs can turn normally un-outrageous conduct into outrageous conduct (torts)?

Children, elderly persons, pregnant women, and supersensitive adults if the sensitivities are known to the defendant.

Jeopardy does NOT generally attach when proceedings are...

Civil.

Crossclaim (Definition)

Claim against a co-party.

Counterclaim (Definition)

Claim against an opposing party

What is the amount in controversy requirement?

Claim must exceed $75,000 for diversity of citizenship to be meet?

What is the supplemental jurisdiction "test"?

Claim that you want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction.

Rule of Convenience

Class closes for a class gift whenever any class member is entitled to a distribution. Rule of construction, not a rule of law.

Non-Assignment/Sublease Clause + Validity

Clause in the lease that says the tenant may not assign or sublet without the express consent of the landlord. Even though clause is form of restraint on alienation, all courts say such clauses are valid and fully enforceable. But, courts strictly construe such clauses (i.e., restriction on assignment is NOT construed to be a restriction on assignment, and vice versa). Violation of clause merely makes attempted transfer voidable at option of Landlord. Courts also quick to find waiver.

Scope of Representation (PR)

Client makes decision about her substantive rights. The Lawyer makes decisions on legal strategy. If you disagree, you may limit the scope of representation with client consent.

Whose death is not encompassed within Felony Murder?

Co-Felon if caused by resistance by victim/police.

Uniform Statutory Rule Against Perpetuities

Codifies common law rule of RAP, provides an alternative 90 year vesting period and adopts a "wait and see" approach to determine whether vesting actually occurs within 90 years.

Color of Title (Definition)

Color of title is a document that purports to give title, but for reasons not apparent from its face, does not.

President has broadest power in what role?

Commander-in-Chief.

First Amendment re: Unprotected Commercial Speech

Commercial speech that is false or misleading is not protected. Neither is advertising for illegal activity.

What law is applied to service contracts?

Common Law

Pre-existing contractual/statutory duty rule: Common Law v. UCC

Common Law does not allow pre-existing duties to serve as consideration. UCC has no pre-existing duty rule; good faith is all required to change existing sale of goods contract.

Pre-existing contractual or statutory duty rule

Common Law: Doing what you are already legally obligated to do is not new consideration for a new promise to pay you more to do merely that. THREE EXCEPTIONS exist. UCC: No pre-existing legal duty rule. New consideration is not required to modify a sale of goods contract. Good faith is the test for changes to an existing sale of goods contract.

Does damage or destruction of subject matter of contract constitute excuse?

Common Law: Excuses performance. UCC: Look to risk of loss to determine who is responsible for goods.

Additional terms and offer revocability

Common Law: Follow Mirror Image rule. Treated as a counteroffer. UCC: Generally treated as an acceptance of the offer. The additional terms will be part of the agreement is both parties are merchants, the additional term if not "material" or objected to by the original offeror.

Landlord's remedies if Tenant fails to pay rent

Common Law: Landlord could sue for damages but could only collected amount in arrears. Landlord could not terminate lease. Modern Majority: Landlord may sue for damages and terminate lease.

Landlord's duty re: Condition of Leased Premises

Common Law: Landlord under no duty to deliver leased premises in habitable condition--lease involves transfer of an estate. Modern Rule: Implied Warranty of Habitability (only to residential property). Obligates landlord to provide and maintain leased premises that are reasonably suited for residential use (premises are fit for basic human habitation under building codes). Disallows retaliatory evictions.

Common Law v. UCC (Additional terms on offer revocability)

Common Law: Mirror Image Rule: treated as a counteroffer. UCC: response to an offer that adds additional or different terms, but does not make the new terms a condition of acceptance, is generally treated as acceptance. The additional terms will be part of the agreement if both parties are merchants, the additional term is not "material" or objected to by the original offeror.

What types of defendants can turn normally un-outrageous conduct into outrageous conduct (torts)?

Common carriers or innkeepers (may be liable even for mere "gross insults").

Who cannot limit their liability for personal injury by disclaimer?

Common carriers.

Publication requirement for Defamation (torts)

Communication (de minimis) of the defamation to a third person who understands it. Must be made either intentionally or negligently, but if it is not reasonably foreseeable that the defamatory statement will be published (i.e., overheard), the fault requirement will not be met. It is the intent to publish, not the intent to defame, that is the requisite intent.

Duty to produce evidence + Ex Parte proceedings

Communications with the judge without your adversary present. Your ethical duties of candor to the court and fairness to your absent adversary require you to volunteer relevant information, trumping the normal presumption that you not reveal facts harmful to your client.

Defenses to Products Liability

Comparative negligence, NOT contributory negligence; assumption of risk (if someone knowingly uses a product in a way that it is not intended to be used)

Compliance w/ a Statute + Negligence

Compliance w/ a statute does not necessarily establish due care, because due care may require more than what is called for by the statute. However, compliance is admissible as evidence that the defendant may have acted with due case.

Restraints on Alienation v. Language of condition

Conditions may be imposed on the exercise of a fee simple but any attempt to limit the right to transfer is void.

What is the exception to Excuse for non-occurrence of a condition?

Conditions of personal satisfaction; honest and good faith dissatisfaction. Courts look to whether a reasonable person would be satisfied.

Under the intentional tort of intentional infliction of emotional distress, what is extreme and outrageous conduct?

Conduct that transcends all bounds of decency in a civilized society. Conduct that is not normally outrageous may become so if: (1) It is continuous in nature; (2) It is directed toward a certain type of plaintiff; or (3) It is committed by a certain type of defendant.

Necessity Defense

Conduct that would otherwise be criminal is justifiable if, as a result of pressure from natural forces, the defendant reasonably believes that his conduct was necessary to avoid a greater social harm.

If dealing with multiple client representation in a PR question, always look for...

Confidentiality breaches.

What are the duties owed to client? (PR)

Confidentiality, Loyalty, Financial Responsibility, and Competence.

Kidnapping Definition

Confinement of a person without either some movement or concealment in a secret place.

Anti-Commandering

Congress cannot compel state regulatory or legislative action. If Congress decides to induce state government action via grant, three requirements must be met.

What are the exceptions to Congress's lack of police power

Congress has police power when legislating for the military, indian reservations, Washington D.C., and federal lands/territories.

What is Congress's power under Sec. 5 of the 14th Amendment?

Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of risks recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constitutional violations.

Commerce Clause

Congress may regulate the (1) channels of interstate commerce, (2) instrumentalities, persons, and things in interstate commerce, and (3) economic activities that have a substantial effect on interstate commerce

Congress's Taxing/Spending power

Congress may tax and spend for the general welfare. Congress may create any tax to raise revenue and any spending plan to spend.

Congress's Appointment Power

Congress may vest the appointment of inferior officers (could be fired by officers of the U.S.) in the President, the heads of departments or the lower federal courts.

"Recklessly" Mental State

Conscious disregarded of a substantial and unjustifiable risk.

"Purposely" Mental State

Conscious objective to engage in certain conduct/cause certain result.

What are the defenses to invasion of right to privacy?

Consent and defamation privilege defenses (for disclosure and false light). Truth is not a good defense; neither is inadvertence, good faith, or lack of malice.

Defenses to Battery

Consent implied by law: arises when action is necessary to save a person's life or some other important interest in person or property (emergency); OR Apparent consent: that which a reasonable person would infer from custom and usage or plaintiff's conduct.

Consent Search Requirements (Fourth Amendment)

Consent must be voluntary.

Statutory Rape + Consent

Consent of victim is no defense.

What are the defenses to intentional torts?

Consent, Self-Defense/Defense of Others/Defense of Property, Privilege of Arrest, Necessity, and Discipline

Forgery

Consists of 1) the making or altering of a 2) a false instrument; 3) with intent to defraud. The falsity must be about the instrument itself, not the contents of the instrument.

Conspiracy and Merger

Conspiracy does NOT merger into substantive offense. You can be convicted of conspiring to do something and doing it.

What occurs when a seller of goods attempts to accept an offer via shipment of "wrong" goods?

Constitutes an acceptance and breach. Limited Exception: Accommodation.

Constructive Possession + Adverse Possession

Constructive possession of part of a tract of land is sufficient to obtain title to the whole only if there is reasonable proportion between the part actually possessed and the whole of the tract; color of title is usually required.

Alternative means of Accomplice Withdrawal is to...

Contact the police.

What factors are to be assessed in personal jurisdiction?

Contact, Relatedness, and Fairness

Contingent interests in property + RAP

Contingent interest in property, such as options and rights of first refusal, violate the RAP IF they could possibly be exercised outside the time period of the Rule.

RAP applies to which interests?

Contingent remainders, executory interests, vested remainders subject to open, options and rights of first refusal; and powers of appointment. Future interests in the grantor (i.e., reversions, possibilities of reverter, and rights of entry) are not subject to the Rule Against Perpetuities.

How long does the duty of confidentiality last?

Continues from attachment past formal representation and even after death.

Contract Clause (Definition)

Contract Clause prohibits states from enacting any law that retroactively impairs contract rights.

When is specific performance available under contract?

Contracts for sale of real estate and sale of unique goods.

What is not required for a Products Liability case?

Contractual privity b/t P and D. Any foreseeable P can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship b/t them.

Contribution (Co-Tenancy)

Contribution concerns the right of one co-tenant to force the other co-tenants to pay their fair share of some expenditure made on the property.

Right to Contribution and Payment of Mortgage

Contribution is required for any mortgage on the property that has been signed by all the co-tenants.

Right to Contribution and Payment of Taxes

Contribution is required towards all governmentally imposed obligations.

Defenses to Abnormally Dangerous Activity Strict Liability

Contributory negligence is no defense if P failed to realize danger. Assumption of risk is a good defense. Comparative negligence is also a good defense.

What is at the center of False Pretense?

Conveyance of title.

Violations of Exclusionary Rule (Admitted when otherwise not supposed to be)

Conviction will not necessarily be overturned b/c improperly obtained evidence was admitted. Court applies harmless error test.

Who is not protected under the Privileges and Immunities Clause?

Corporations

Who cannot use the P&I Clause of Art. 6?

Corporations and aliens.

Incidental Damages

Costs incurred in dealing with the breach (e.g., costs of storing rejected goods or finding a replacement in a services contract). Always recoverable.

Integral question of RAP:

Could this future interest possibly vest in the Grantee outside the time period of the Rule? If yes, then interest is void.

Bargaining v. Counteroffer

Counteroffers generally terminates offer and creates a new offer. Bargaining does not terminates offers.

Evidence + 12(b)(6) Motion

Court does not look at evidence; court only looks at face of complaint.

What will court do with forum non conveniens?

Court does not transfer to the more convenient court, it dismisses or stays the case. Why? Because the more convenient court is in a different judicial system, so transfer is impossible.

Scrutiny re: 2nd Amendment Right to Bear Arms

Court has not provided level of scrutiny. D.C. v. Heller protects right to have guns in home for security, but right to guns is not absolute (can regulate who has funds, where they have guns, what type of guns they have).

12(b)(6) Motion to Dismiss For Failure to State a Claim

Court ignores P's legal conclusions; looks only at P's allegations of fact. On these facts would P win a judgment? If not, P will either be asked to amend case or case will be dismissed.

Interlocutory review + class action certification

Court of appeals has discretion to review an order granting or denying certification of class action. Must seek review at the court of appeals within 14 days of order.

What happens if joinder of a necessary party is feasible?

Court order your joinder.

What will court do if the original district is an improper venue?

Court will transfer in the interest of justice or dismiss.

Exception to Physical Injury Requirement of NIED (NOT bystander liability)

Courts have permitted plfs to recover in the absence of physical symptoms where def's negligence creates a great likelihood of severe emotional distress, such as the mishandling of a relative's corpse, because in this instance it is certainly foreseeable that the person will suffer severe emotional distress.

Full Faith and Credit + Requirements

Courts in one state must give full faith and credit to judgments of courts in another state, so long as: (1) the court that rendered the judgment had jurisdiction over the parties and subject matter; (2) the judgment was on the merits; and (3) the judgment was final.

Assignee's Liability on non-rent covenants

Covenant contained in the lease will run with the land if it touches and concerns the land.

Pretrial conference order.

Created at the final pretrial conference to determine the issues to be tried and evidence to be proffered at trial. Important because it supersedes the pleadings.

How is a bilateral contract created?

Created from all other offers that do not expressly require performance as the only possible method of acceptance.

Jury Pool v. Impaneled Jury (Cross sectional)

Cross sectional requirement applies to jury pool, but not impaneled jury.

What is the effect of default?

Cuts off D's right to respond.

When can D implead?

D can only do this to shift liability he owes to P.

Proximate Cause + the test.

D generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts = FORESEEABILITY TEST.

Impleader

D is bringing in a new party to the case. The new party is the third party defendant (TPD).

Extent of harm in Negligence

D is liable for ALL damages even if the extent or severity of the damages was unforeseeable.

"Eggshell-skull plaintiff" Rule

D is liable for all damages even if the extent or severity of the damages was unforeseeable. Applies to EVERY tort.

Proximate Cause + Direct Cause Cases

D is liable for all foreseeable harmful results, regardless of the unusual manner in which they arose or the unusual timing of cause and effect. D is not liable for unforeseeable harmful results not within the risk created by D's negligence. Most harmful results will be deemed foreseeable in direct cause cases.

Treatment of intervening medical malpractice (Proximate Cause)

D is liable for eventual harm caused by medical malpractice; it is foreseeable medicine mistakes will be made.

Treatment of intervening reaction/protection force (Proximate Cause)

D is liable; when you create a hazardous situation it is foreseeable you will create panic leading to subsequent responds.

Treatment of intervening negligent rescue (Proximate Cause)

D is liable; when you hurt someone rescuers will be foreseeably attracted and they could make mistakes.

NIED + Special Relationship Case

D may be liable for directly causing the P severe emotional distress that leads to physical symptoms when a duty arises from the relationship b/t the P and the D, such that the D's negligence has great potential to cause emotional distress.

To have general personal jurisdiction, what must be true?

D must be at home in the forum.

What must be true to state lack of sufficient information in the answer?

D must conduct reasonable investigation of things in his control.

When must a D attempt to remove?

D must remove within 30 days of service of the first paper that shows the case is removable. Usually, that means within 30 days of service of process. 30 day clock begins anew if there is service on a new D.

Motion to set aside default judgment requirements

D must show good cause and a viable defense.

What is the limitation on Consequential Damages?

D needs to have reason to know of these special circumstances at the time of the contract.

Removal

D sued in state court might be able to "remove" the case to federal court. Removal transfers the case form a state trial court to a federal trial court.

Proving a manufacturing defect

D will be liable if P can show that the product failed to perform as safely as an ordinary consumer would expect.

Damages + Reasonable Certainty

Damage awards must be reduced by damages that cannot be established with reasonable certainty.

What are the two types of interference in a Trespass to Chattels?

Damage or dispossession (i.e., depriving plaintiff of his lawful right of possession of the chattel).

In their answer, what is a D never deemed to have admitted?

Damages

What are the remedies for conversion?

Damages (fair market value at the time of conversion) or possession (replevin).

Consequential Damages

Damages arising from the P's special circumstances and limited to situations in which D has reason to know of these special circumstances at the time of the contract.

What is the standard for awarding a new trial based on inadequate or excessive damages?

Damages figure must shock the conscience.

Avoidable Damages

Damages that could have been avoided without undue burden on the P. Burdens of pleading and proof on D.

How is an Expert Opinion based on reliable principles that were reliably applied?

Daubert/Kumho standard: Judge reliability based on whether (1) it has been peer reviewed and published, (2) has been tested and is subject to retesting, (3) has a low error rate, and/or (4) has a reasonable level of acceptance.

What standard of review do judges use for questions of law?

De novo.

Defense of a Dwelling

Deadly force may never be used to solely defend your property.

Excuse by death

Death after contract does not make a person's contract obligations disappear. ONE EXCEPTION: If there is a death of a party to contract who is a "special" person, then performance is excused.

Death before contract v. Death after contract

Death of either party before contract terminates an offer. However, death after contract does not excuse performance (unless exception exists).

What are the two possible ways that a deed may be filed at the courthouse but not recorded in the chain of title?

Deed was recorded too early or too late.

Quitclaim Deed

Deed where Grantor makes no promises regarding title.

Sale leaseback with Option to Repurchase

Deeding of land to mortgagee who then leases the land to the mortgagor with the option to purchase at the end of the lease. The lease payments are roughly equal to mortgage payments and the repurchase price is nominal. Treated like a mortgage.

General Deed

Deeds that include the 6 traditional forms of Covenants for Title.

When are deeds void? When are they voidable?

Deeds that were forged, never delivered, or obtained by fraud are void. Deeds obtained by means of, among other things, duress, undue influence, or mistake are considered voidable.

Strict Liability + Nuisance (Nuisance Per Se or Absolute Nuisance)

Def can be held strictly liable for nuisance where wild animals or abnormally dangerous domestic animals are involved, or when defendant was engaged in an abnormally dangerous activity.

Who can remove a case to federal court?

Defendant

Doctrine of Avoidable Consequences (Negligence)

Defendant can raise the doctrine of avoidable consequences is an injured party neglects to take available steps to treat personal injuries inflicted by the defendant. Under the doctrine, the plaintiff owes a duty to mitigate damages to person or property after the damage is inflicted. If she does not properly do this, then damages will be reduced.

Retrial after successful appeal...

Defendant cannot be retried for a more serious offense than he was convicted of at the first trial.

Right to self-representation

Defendant has right to defend himself so long as his waiver of trial counsel is knowing and intelligent and he is competent to proceed pro se.

Cross Sectional Requirement for Juries

Defendant has right to have jury pool reflect a fair cross section of the community. But they have no right to have the impaneled jury reflect a fair cross section of the community.

Private Necessity (Torts)

Defendant invades P's property in an emergency to protect his own self-interest, not the community. Only a limited defense. D remains liable for actual damage to property, but NOT liable for nominal or punitive damages. The property owner cannot eject D as long as the emergency continues (otherwise he is liable for harm to D).

Public Necessity (Torts)

Defendant invades P's property in an emergency to protect the community as a whole or a significant group of people. No repayment to property owner; public necessity is an absolute defense.

Express consent (torts)

Defendant is not liable if plaintiff expressly consents to defendant's conduct.

Proximate Cause (Criminal)

Defendant is responsible for all results that occur as a natural and probable consequence of his conduct, even if he did not anticipate the exact manner in which they occur. Unforeseeable intervening acts will relieve def of liability (i.e., comet falls on the victim).

MPC Rule for Insanity

Defendant lacked ability to conform his conduct to the requirements of law.

Irresistible Impulse Rule

Defendant lacked the capacity for self-control and free choice.

What intent is required for a Trespass to Land?

Defendant need intend only to enter onto that particular piece of land; he needn't know that the land belonged to another.

Durham Rule

Defendant's conduct was a product of mental illness.

Mistake + Trespass to Chattels.

Defendant's mistaken belief that he owns the chattel is no defense.

Duress Defense

Defense if (1) the person acts under the threat of imminent infliction of death/great bodily harm; and (2) belief is reasonable. Threats to harm a 3rd person may also suffice to establish the defense of duress.

Which defenses are inapplicable to Strict Liability crimes?

Defenses that negate intent.

Delegation + Liability

Delegating party always remains liable. Delegatee liable only if she receives consideration from delegating party.

How do you service other documents (other than process)

Delivering/Mailing to party's attorney. No need for summons/formal service. Such delivery can be by email if the parties agree.

Acceptance of Deed

Delivery of a deed is valid only if the deed is accepted. However, acceptance will be implied unless the facts show otherwise. Consideration is not required in order for deed to be valid.

Dependent v. Independent Intervening Causes (Proximate Cause)

Dependent intervening forces are almost always foreseeable. Independent intervening forces may be foreseeable if defendant's negligence increased the risk of harm from these forces.

Determining "reasonable suspicion" (Terry stops)

Depends on the totality of the circumstances.

Right to Contribution (Co-Tenancy)

Depends on what type of expenditure was made on the property. (1) Improvements: NO, but... (2) Repairs: YES, but only for necessary repairs (3) Mortgage: YES for any mortgage on property that has been signed by all co-tenants. (4) Taxes: YES, required towards all governmentally imposed obligations.

What determines the extent of Premise Liability (Negligence)?

Depends on where the injury occurred and on the status of the plaintiff.

Satisfaction of the Statute of Frauds via Performance (Sale of Goods contracts)

Depends on whether we are dealing with ordinary goods or specially manufactured goods. Ordinary goods: Part performance of a contract for the sale of goods satisfies the Statute of Frauds, but only to the extent of the part performance. Specially manufactured goods: Statute of Frauds satisfied as soon as the seller makes a "substantial beginning". Seller has done enough work that it is clear what she is working on is specially manufactured.

When will a writing satisfy the Statute of Frauds (contracts)?

Depends on whether we are in common law or UCC. Common Law: All material terms test. Writing satisfies the Statute of Frauds so that there is no Statute of Frauds defense if the writing has been signed only by the defendant. UCC: Writing satisfies the Statute of Frauds so that there is no Statute of Frauds defense if the writing indicates there is a contract for the sale of goods, contains the quantity term, and has been signed by the defendant (with one exception for 2 merchants interacting).

In a sale of goods, who bears the risk of loss during delivery?

Depends upon the following four rules, applied in order. (1) Agreement of the party controls; (2) Breaching party is liable for any uninsured loss even though breach is unrelated to problem; (3) Risk of loss shifts from seller to buyer at time seller completes its delivery obligation; or (4) Default/Catch-all rules apply.

Natural resources + Voluntary Waste

Depletion of natural resources constitutes waste UNLESS consumption of such resources constitutes the normal use of the land (they were consumed before), as in the case of a life estate in a coal mine or a granite quarry.

Open Mines Doctrine

Depletion of natural resources constitutes waste UNLESS consumption of such resources constitutes the normal use of the land (they were consumed before), as in the case of a life estate in a coal mine or granite quarry.

If funds are too small or held for insufficient time to cover bank charges...

Deposit them together in a Pooled Client Trust Account. Interest foes to the State Bar for services for the poor.

FOB followed by a city where the seller/ goods are not means it is what type of contract?

Destination contract.

What is "reasonable development of dominant estate" (Easement Presumption)?

Development which would likely have been contemplated by the parties at the time the easement was granted.

Fee Tail

Device to lock the preo

Supreme Court has held that police, without a warrant, may not search ( ) seized from an arrested individual.

Digital information on a cell phone.

What cannot be given if res ipsa loquitur is proven?

Directed verdict for the D.

Even if diversity jurisdiction is met, what kinds of cases will federal courts not hear?

Divorce, alimony, child custody, probate and estate.

Solicitation General Rule (PR)

Do not seek professional employment for pecuniary gain by initiating a live or telephone contact with a specific person with whom you have no prior professional, personal or family relationship. Extends to Lawyer's agents.

Exoneration (Majority Rule)

Doctrine is abolished. Devisee takes the property subject to the mortgage.

What is an exception to the Statute of Frauds as it relates to Land Sale Contracts?

Doctrine of Past Performance.

Privilege Log

Document listing the material protected by date, author, recipient, and privilege or protection claimed. It must be in enough detail to allow the judge to determine whether the material is protected.

What is the constitutional analysis of personal jurisdiction?

Does D have "such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair fair play and substantial justice"?

What if no "Return" of service is filed?

Does not affect validity of service.

Permissive Counterclaim

Does not arise form the same T/O as P's claim. Permissive means you are not required to file it in this case. You may sue on it in a separate case.

Actual Breaking (Burglary)

Does not exist if entrance achieved through wide open door/window. BUT--ends once any such structure is touched. Does not exist if consent is given to the defendant to enter.

Constructive Eviction

Does not involve an actual physical exclusion of tenant. Occurs where landlord fails to provide some service that the landlord is obligated to provide AND that failure makes the property uninhabitable.

Distinguishing b/t Personal Knowledge Requirement and Hearsay

Does the fact testified to = the fact perceived? If not, then Personal Knowledge is the correct objection. Does the witness quote someone or explicitly refer to someone's out of court statement that witness heard? If so, Hearsay is the correct objection.

How do you determine whether something is a final judgment?

Does the trial court have anything left to do on the merits of the case? If yes, NOT a final judgment.

What is the general rule re: the duty of confidentiality to your client?

Don't reveal anything related to the representation of a client or use that information against her without her consent.

Dealing with tolerable conflicts; 3 requirements (PR)

Done on a case by case basis. Must establish 3 elements: (1) You reasonably believe you can represent everyone effectively, despite potential or actual conflict. (CA: This belief needn't be reasonable). (2) You inform each client (potentially not possible given other duties). (3) Client consents, confirmed in writing. (CA: For purely personal conflicts, CA requires only written disclosure).

Dramshop Act (Definition)

Dramshop acts create a cause of action in favor of any third person injured by an intoxicated vendee to hold a bartender vicariously liable for the vendee's acts. Such acts were enacted to avoid the common law rule, which is that no liability is imposed on vendors of intoxicating beverages for injuries resulting from a vendee's intoxication. However, plfs can sue a bartender for negligently serving alcoholic beverages to a minor or an obviously intoxicated adult, but this is different than vicarious liability.

Prosecutor's failure to disclose evidence, whether willful or inadvertent, violates...

Due Process Clause

Duress v. Necessity Defenses

Duress involves a human threat; Necessity involves pressure from natural forces.

When can the duty of confidentiality attach?

Duty can attach before a lawyer-client relationship is formed, or even if none is formed.

Duty of Adjacent Property Owner

Duty of ordinary care as to the dangerous conditions and active operations on her property.

Duty re: NIED + Requirements

Duty to avoid NIED may be breached when the D creates a foreseeable risk of physical injury to the P. The P usually must satisfy 2 requirements to prevail: (1) P must be within the "zone of danger" (distress caused by threat of physical impact); and (2) P must suffer physical symptoms from the distress. Requirements not always necessary if NIED involves bystander or there is a special relationship b/t P and D.

Duty of fairness

Duty to behave honestly in all dealings, both in and out of legal practice. Even when there are no explicit rules, you must act to promote public confidence in the integrity and efficiency of the legal system and profession.

Duty to keep fee records

Duty to keep individual, client ledgers, render accounting, notify your client of moneys received on his behalf, and pay promptly money due to him. CA: Requires you keep records of client property for 5 years after final distribution

Minority Rule limitations on deadly self-defense:

Duty to retreat.

Adverse Possession Requirements

ECHOES: Exclusive: X must exclude others from possessing the property. Continuous: Kind of continuous use that an ordinary owner of property would make. Hostile: X is on the land with no right to be there. Open: X's use and possession of property is "open and notorious" Entry: X must actually enter and possess the property to obtain title. Statutory: Possession must last for the statutory period (20 years under common law, if not provided). TWO EXCEPTIONS. However, O needn't know what's going on and X needn't think he owns the land.

Co-Tenants and Right of Possession

Each co-tenant has the right to possess the whole of the property--consistent with the same right in every other co-tenant.

Liability for Co-Conspirators' crimes

Each conspirator is liable for ALL crimes of co-conspirators if (1) those crimes were committed in furtherance of the conspiracy and (2) were foreseeable.

Disclosure requirements re: Expert Witnesses

Each party must identify expert witnesses "who may be used at trial". Party must disclosure the expert's identity and a written report prepared by the expert witness.

Transfer of the Servient Estate

Easements are always binding on subsequent holders of servient estates (even if the easement is not specifically mentioned in the deed of conveyance) provided the subsequent holder had notice of the easement. If subsequent holder is a BFP (purchaser for value who takes without notice of the easement) then the easement is not binding.

What damages are recoverable in Negligence?

Economic and non-economic; foreseeability of the extent of harm is generally irrelevant. Property damage is often the reasonable cost of repair or fair market value if nearly destroyed. Punitive damages are generally not available unless D's conduct is "wanton and willful, reckless or malicious".

Assault (Criminal)

Either (1) an attempt to commit a battery; or (2) intentional creation (other than by mere words) of a reasonable apprehension of imminent bodily harm.

A state acquires jurisdiction over a crime if...

Either (1) the conduct or (2) the result happened in that state.

Rule 12 requires the D to respond to a complaint in what ways?

Either by (1) a motion or (2) an answer.

What does the court do if it cannot join a necessary party?

Either proceed without the party or dismiss the case. How does a court make that decision? It looks at: (1) Is there an alternative forum available? (2) What is the actual likelihood of harm to you? (3) Can the court shape relief to avoid that harm to you?

Respondeat Superior

Employer will be vicariously liable for tortious acts committed by her employee if the tortious acts occur within the scope of the employment relationship, but will not be held liable for an employee's intentional tots unless the job includes authorized use of force, conflict, or any situation where an intentional tort being used to enhance business interests. Don't forget that an employer can also be liable for their own negligent supervision (different than vicarious liability)

What is the remedy for excessive use of an easement (i.e., use outside the scope of the easement)?

Enjoin the excessive use, but do not terminate the easement.

Quasi Contract

Equitable remedy; not governed by contract law. Used anytime contract principles produce unfair results.

Terms of a Land Sale Contract (essential v. nonessential)

Essential 1) A description of the property that accurately/clearly identifies the property—minor errors are okay; 2) An identification of the parties to the contract; and 3) A price and manner of payment, if agreed upon. The SoF also requires the contract to be in writing and signed by the seller. Nonessential 1) Closing date (if absent, it will be construed as being within a reasonable time)

What must a deed generally contain in order to be valid? What is not essential?

Essential: 1) Grantor's words of intent (i.e., that they intend to transfer the realty—usually through using the word "grant") 2) Grantor's signature 3) Description of the land that is sufficient to identify the land in question Nonessential: 1) Grantee's signature

"Subject to executory interest"

Estate created in grantee if an executory interest in a third party grantee could serve to cut his interest short upon the happening of a stated event or condition. When the condition occurs, the estate is automatically transferred to the third party with the executory interest.

Six Covenants of a General Warranty Deed Mneumonic

Even Filthy Scoundrels Reject Questionable Warranties 1) Encumbrances (present) 2) Further Assurances (future) 3) Seisin (present) 4) Right to Convey (present) 5) Quiet Title (future) 6) Warranty (future)

Discretion to exclude relevant evidence

Even if evidence is relevant, court has discretion to exclude if probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.

Proportionality Doctrine of Discovery

Even if something is relevant, the court has authority to limit discovery if the request is cumulative or if the burden outweighs the importance of the issue.

What are the "discretionary factors" of supplemental jurisdiction?

Even if we meet the requirements for supplement jurisdiction, the court has discretion to decline jurisdiction. It can do so if the state law claim is complex or state law issues would predominate in the case. Most commonly, court can decline supplemental jurisdiction if the underlying claim in the case is dismissed early.

Specific Requirements for the Ads themselves (PR)

Every ad must be labeled as advertising and, if applicable, "a dramatization" or "impersonation". It must identify at least one lawyer responsible for its contents. You must keep records of the content and placement of any ad for 2 years.

Implied Covenant of Marketable Title

Every land sale contract contains an implied covenant that the Seller will deliver marketable title to the Buyer at close of escrow. Seller must provide buyer with THREE things to satisfy this implied covenant.

Unmarketable Title

Every land sale contract contains an implied covenant that the seller will provide marketable title at closing. While it need not be perfect title, it must not present the buyer with an unreasonable risk of litigation. Title may be unmarketable because of a defect in the chain of title. Examples include a significant variation in the description of the land from one deed to the next, the defective execution of a prior deed in the chain of title that thus fails to meet the requirements for recordation, and evidence that a prior grantor lacked capacity to convey the property.

Once a case is properly in federal court (under diversity or FQ), what must be done with each additional claim?

Every single additional claim must be tested for federal subject matter jurisdiction.

Where is a corporation deemed to be a citizen?

Every state of incorporation and the one state where it has its principal place of business.

Relevance Definition (Evidence)

Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

Admissibility of relevant evidence re: liability insurance

Evidence of liability insurance is inadmissible to prove culpable conduct like negligence or defendant's ability to pay a judgment. HOWEVER--admissible to prove anything else.

Admissibility of relevant evidence re: Payment or offers to pay medical expenses

Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question.

Admissibility of relevant evidence re: subsequent remedial measures or repairs

Evidence of safety measures or repairs after an accident is inadmissible to prove culpable conduct and, in a products liability action, is inadmissible to prove defective product design. HOWEVER--admissible to prove anything else.

Evanescent Evidence

Evidence that might disappear quickly if the police took the time to get a warrant (e.g., scrape under fingernails).

An attorney or her agent may be compelled to testify as to the original location or condition of...(PR; evidence)

Evidence that she moved or altered.

Process required for pre-judgment attachment of government seizure:

Except in exigent circumstances, requires notice + hearing. However, government may seize property used in illegal activity even if it has an innocent owner.

Community Caretaker exception (Fourth Amendment)

Exception to Gant rule justifying a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public.

What is the "Accommodation exception"?

Exception to the rule that acceptance via shipment of "wrong" goods is both an acceptance and a breach. When sending the "wrong" goods with an acknowledgement of such a fact, the shipment will be considered only a counteroffer (and no breach).

Remedy for denial of due process (Pre-trial identification)

Exclude the in-court identification, unless the State can show that it had an adequate independent source for that in-court identification.

Fruit of the Poisonous Tree Doctrine

Exclusionary rule applies not only to exclude illegally seized evidence, but also evidence obtained or derived from police illegality.

Legal power of executive agreements

Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.

What future interest does not create standing to sue for waste?

Executory Interests

RAP always applies to...

Executory interests, contingent remainders, and vested remainders subject to open.

Good Samaritan Statutes

Exempts health care providers who graciously provide emergency medical service for liability other than for gross negligence

Implied Warranty of Fitness

Exists where buyer has a particular purpose in buying good, is relying on seller to select suitable goods and the seller has reason to know of that purpose and reliance. A term is automatically added to the contract by operation of law--that the goods are fit for the particular purpose for which they were bought.

Doctrine of Constructive Adverse Possession

Expands the kernel of actual possession out to the full extent of the color of title under which the adverse possessor makes his claim of right to the property. TWO Important Limitations (separate card)

Rules re: Consulting Experts

Expert hired to help a party prepare the case, but does not intend to call that expert to testify. Facts known and opinion held by consulting experts are generally not discoverable (only in "exceptional circumstances").

Helpful Requirement for Expert Opinion testimony

Expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself.

What are the 2 types of Preemption?

Express and Implied.

Two kinds of consent (torts)

Express/Actual consent and Implied consent.

Life estate may be granted in two ways...

Expressly or may arise by implication.

What is the exception to the general rule of past consideration?

Expressly requested by promisor and expectation of payment by promisee.

Rules re: Impeachment by Contradiction

Extrinsic Evidence inadmissible to contradict a witness's testimony on a collateral matter.

Rules re: Impeachment with Reputation and Opinion Regarding Truthfulness

Extrinsic evidence is admissible.

Factual Impossibility + Conspiracy

Factual Impossibility is no defense.

Factual Impossibility + Solicitation

Factual Impossibility is no defense.

"Negligently" Mental State

Failure to be aware of a substantial and unjustifiable risk.

Permissive Waste

Failure to maintain.

Which of the Rule 12(b) defenses can be brought anytime through trial?

Failure to state a claim and failure to join an indispensable party.

False Light v. Defamation

False Light opens more damages than defamation does (opens up emotional and social damages). False Light is broader; statements needn't be defamatory.

What is Abstention?

Federal Courts may not enjoin pending state court proceedings.

Article 3 of the Constitution defines the power of...

Federal Courts.

When can a federal court still hear a claim if it does not satisfy diversity of citizenship or FQ?

Federal court can still hear claim if it invoked Supplemental Jurisdiction.

Political Question Doctrine

Federal courts will not adjudicate political questions. These claims are left to the other branches to resolve. Examples: (1) The "republican form of government clause" (2) Challenges to President's conduct of foreign policy (3) Challenges to impeachment and removal process (4) Challenges to partisan gerrymandering.

Which courts have "limited" subject matter jurisdiction?

Federal courts.

Who can states not tax or regulate?

Federal government activity. I.e., sate can't regulate federal government if it puts a substantial burden on government activity.

In contingent fee cases, agreements must include...

Fee agreements must be written, signed by the client and contain: (1) your % of recovery; and (2) what expenses will be deducted from the recovery; and (3) whether your % is taken before or after the expenses. CA: Also requires that agreements state: (4) How work not covered by contingency fee will be paid; and (5) that lawyers' fees are negotiable.

Fee Simple Determinable

Fee simple estate that ends automatically on the occurrence of some event and title reverts automatically back to the grantor (a future interest known as a possibility of reverter).

Fee Simple Subject to a Condition Subsequent

Fee simple where original grantor can retake the full estate on the occurrence of a condition. Title does not go back to Grantor automatically when condition is broken. Instead, Grantor must do something to retake property; title stays in Grantee until Grantor exercises his right of entry.

Rules re: Impeachment with Conviction for Crime NOT involving a false statement

Felonies that do not involve false statement may be admissible to impeach but the court may exclude for unfair prejudice. Misdemeanors that do not involve false statement are inadmissible to impeach. If conviction admissible, conviction may be proved with extrinsic evidence.

How does a D remove?

Files a "notice of removal" in federal court, stating grounds of removal (federal SMJ). D then serves a copy of the "notice of removal" on adverse parties. Then D files a copy of the "notice of removal" in state court.

What commences an action in court?

Filing of the complaint.

Firefighter's Rule

Firefighter and police officers may be barred from recovering for injuries caused by the risks inherent in their job because they are deemed to have assumed the risk.

Exception to duty re: rescuers

Firefighter's Rule

Rules for entering into business transactions or adverse interests with clients (PR)

First Discuss Over Coffee. You may enter into business with a client or obtain an interest adverse to hers only if: (1) the terms are Fair to the client, (2) Disclosed in understandable writing, (3) the client is advised to consult an Outside lawyer, and (4) your client provides Consent in writing.

Multiple Assignments for consideration: What result?

First assignee for consideration wins, with a very limited exception.

Prior Appropriation Rules

First in time takes. The first person who makes beneficial use of water from a lake or stream has that right protected against those who comes later, so long as the use continues.

What is the common law in regards to Recording?

First in time, First in right. Subsequent purchasers always lose.

Security Interests in Fixtures.

Following foreclosure and lack of funds, mortgagee/junior interests are out of luck unless a special UCC Article 9 fixture filing was made in timely fashion.

Congressional restrictions on removal power

For Congress to limit removal, it must be an office where independence from the President is desirable. Congress cannot prohibit removal, it can limit removal to where there is good cause.

Agency Theory of Felony Murder

For actor to be liable for felony murder, the killing must have been caused by the actor or someone acting as the actor's "agent" (i.e., an accomplice).

Under the intentional tort of false imprisonment, what is a "bounded area"?

For an area to be "bounded," freedom of movement must be limited in all directions. there must be no reasonable means of escape known to the plaintiff or that he can reasonably discover.

Under the intentional tort of false imprisonment, how long must you be confined?

For any period at all; it is irrelevant how short the period of confinement was.

Difference between "settlement admissibility rule" and "medical payment admissibility rule"

For settlements, related statements are also inadmissible. For offers to pay medical expenses, related statements may be admissible.

Foreclosure + Senior Interests

Foreclosure does not wipe out senior interest. Senior interest continues in place and the buyer will take the property subject to senior interest (but is not personally liable for the mortgage unless they "assume" the mortgage).

Foreclosure Definition

Foreclosure is a process that terminates the mortgagor's interest in the property. Generally, the property is sold in a foreclosure sale to satisfy the mortgage debt.

Treatment of subsequent disease/accident (Proximate Cause)

Foreseeable that when you leave someone in a weakened condition that they will suffer further injury.

Creation of Joint Tenancies

Four Unities must be present at the outset in order to create a joint tenancy. To create a joint tenancy, the language of the conveyance must clearly reflect the Grantor's intent to create a joint tenancy (right of survivorship must be expressly stated in language of grant).

What three matters must be pleaded with even more detail than plausibility (i.e., with particularity or specificity)?

Fraud, mistake, and special damages.

What are the 2 large categories of present possessory estates?

Freehold and Non-Freehold

Tenancy in Common Alienability

Freely Alienable. In other words,aAn interest in a tenancy in common is freely alienable by inter vivos and testamentary transfer, is inheritable, and is subject to claims of the tenant's creditors.

What is "habit" in habit evidence?

Frequently repeated conduct.

Satisfaction of the Statute of Frauds via Performance (Service Contracts)

Full performance by either party satisfies the Statute of Frauds. Part performance does not satisfy the Statute of Frauds. However, part performance may allow recovery under quasi-contract.

Transferability of a Vested Remainder (including those subject to open)

Fully devisable and descendible.

Erie means that there is no...

GENERAL federal common law. There are areas where federal courts are free to make up common law on their own: Congressional gap filling, etc.

How should gender classifications benefitting women be treated?

Gender classifications benefitting women that are based on role stereotypes will not be allowed. Classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.

What type of crime is battery (Criminal)?

General intent crime.

General Intent

General intent requires that the defendant be aware that he is acting in a proscribed way and that any attendant circumstances required by the crime are present.

General v. Specific Jurisdiction

General jurisdiction requires that you be "at home" in the forum; allows you to be sued in forum state for any claim arising anywhere. Special jurisdiction does not require you be "at home," but only allows that you be sued for a claim arising from your contacts within the forum state.

What does a court need to exercise personal jurisdiction over D if P's claim does not arise from D's contact with the forum?

General personal jurisdiction.

Congress lacks what?

General police power.

Liability of Successive Landlord on the Lease

General rule: Original landlord continues to be liable to original tenant b/c of privity of contract. General rule: Successor landlords may be liable to original tenant if there is either privity of contract (express assumption) OR privity of estate and the lease covenant runs with the land.

What are the most common contract money damages?

General, incidental, and consequential.

Admissibility + Opinion testimony (general rule)

Generally inadmissible. Lay and expert opinion may be admitted under limited rules.

Fee Splitting Rules

Generally it is OK to split fees with lawyers in your law firm. You may split fees with lawyers outside your firm only if the total fee is ethical and there is written disclosure and client consent. ABA further requires that the division be proportional to the work done by each attorney, unless each is jointly responsible for the action. Fee-Splitting with Non-Lawyers is generally not allowed. Exceptions exist.

Effect of Counteroffers (Ks)

Generally terminates the offer and creates a new offer. EXCEPTION for offers.

Is an advertisement/price quotation an offer?

Generally, NO. However, three exceptions exist. (1) Ad can be a unilateral K if it is in the nature of a reward. (2) An ad can be an offer if it specifies the quantity and expressly indicates who can accept. (3) Price quotation can be an offer if sent in response to an inquiry.

Generally, who can accept a contract offer?

Generally, an offer can be accepted only by (1) a person who knows about the offer at the time she accepts and (2) who is the person to whom it was made.

Death of a Party before close of Escrow (Generally)

Generally, because of the doctrine of equitable conversion, if either party to the contract dies before closing, equity will still order specific performance of the contract if necessary. If death of either party generally will not affect the rights of the parties as set out in the contract.

Waiver of Right of Redemption

Generally, cannot be waived in the original Mortgage or Deed of Trust, BUT can be waived later if there is separate consideration for the waiver.

Which duties are delegable?

Generally, contract duties are delegable. Limitations on delegation are very limited.

Time of Performance re: Land Sale Contracts

Generally, contract will specify the date for closing. If a parties fails to perform on that date, it is not necessarily a problem, as long as performance is rendered within a reasonable time (2 months). Time is not of the essence in land sale contracts unless (1) the contact says otherwise or (2) the facts make clear that the parties intend that time of the essence.

Terminating an offer via Death or Incapacity

Generally, death or incapacity of either party after the offer, but before the acceptance, terminates the offer. There is an exception if the offer is an irrevocable offer. Moreover, death or incapacity does not need to be communicated to the other party to be effective.

Law of waste + Life Estates

Generally, life tenants must maintain the estate.

Mortgages + Encumbrances

Generally, mortgages are treated as encumbrances; however, a mortgage that will be satisfied out of the proceeds of the sale of property is NOT an encumbrance.

Can express warranties be disclaimed?

Generally, no.

In regards to Third-Party Beneficiaries, can beneficiaries recover form promisees?

Generally, no. BUT, a creditor beneficiary can recover from promisee but only on pre-existing debt.

Affirmative Duties to Act (Negligence)

Generally, one does not have a legal duty to act. Exceptions to the rule exist: (1) Assumption of Duty by Acting: one may assume a duty to act by acting. (2) Peril Due to Defendant's Conduct: One has a duty to assist someone he has negligently or innocently placed in peril. (3) Special Relationship b/t Parties: Similarly common carriers, innkeepers, and shopkeepers that gather the public for profit owe duties of reasonable care to aid or assist their patrons. In addition, places of public accommodation have a duty to prevent injury to guests by third persons. (4) Duty to Prevent Harm from third persons: may be imposed if one has the actual ability and authority to control a person's actions and knows or should know the person is likely to commit acts that would require exercise of this control.

Who may "open the character evidence" doors in a criminal case?

Generally, only the defendant can open these doors and they are opened separately. WITH ONE EXCEPTION.

What level of scrutiny is used for alienage classifications?

Generally, strict scrutiny is used. But exceptions exist: (1) Rational basis review is used for alienage classifications that concern self-government and the democratic process (e.g., with regards to voting, being on jury, being police officers/probation officer/teacher). (2) Rational basis review used for Congressional discrimination against aliens (Congress has plenary power to regulate immigration. (3) Intermediate scrutiny used for discrimination against undocumented alien children.

Protections to holders of junior interests

Generally, the holders of junior interests have the right to pay off any mortgage being foreclosed on in order to keep their junior interests from being wiped out. Thus, junior interests are a necessary party to any foreclosure proceeding. If they are NOT made a party to any foreclosure, then their junior interests are NOT eliminated by the foreclosure.

Start of Performance + Acceptance

Generally, the start of performance is acceptance. Starting to perform is treated as an implied promise to perform. EXCEPTION: Unilateral Contracts.

Existence of Merger in American law

Generally, there is no merger of crimes in American law.

Housing/building/safety code violations + Encumbrances

Generally, these violations do NOT constitute encumbrances on title.

Final Judgment Rule

Generally, you can appeal only from final judgments. Ultimate decision by trail court of the merits of the entire case.

Deed of trust

Given by the debtor to a third party trustee, who olds the Deed of Trust until the loan is paid in full. IF the loan is not paid the trustee can do: (1) obtain a court order for a foreclosure sale of the property or (2) sell the property by himself at a public option.

Mortgage

Given by the debtor/mortgagor to the creditor/mortgagee. If loan is not paid in full, sheriff sells land at a court-ordered foreclosure sale.

Restrictive Covenant

Gives the holder of the interest the right to restrict some third party in the use of his or her hand.

What is a Profit (Property)?

Gives the right to go onto the land of another and take away a natural resource. Along with the grant of profit goes the implied easement to go on the land to remove the natural resource.

Presentment

Giving the bill to the President and sign or veto.

What is required for rejection on grounds of less than perfect tender?

Good faith.

Symbolic Speech rules

Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.

What type of activity is unconstitutional in schools under the Establishment Clause?

Government cannot discriminate against religious speech or among religions unless strict scrutiny is met. Government sponsored religious activity is public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non-religious groups.

What is a possessory takings?

Government confiscation or physical occupation of property. ALWAYS A TAKING.

There can be no adverse possession of what type of land?

Government land.

First Amendment and the Press

Government may not create liability for the truthful reporting of information that was lawfully obtained from the government. Liability is not allowed if the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public importance. Government may limit its dissemination of information to protect privacy.

Takings Clause

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

Government, zoning, and adult establishments.

Government may use zoning ordinances to regulate the location of adult bookstores and movie theaters.

What is insufficient for a deprivation of due process?

Government negligence is not sufficient for a deprivation of due process. Generally, there must be intentional government action or at least reckless action for liability to exist. However, in emergency situation the government is liable under due process only if its conduct "shock the conscience".

Limited Public Forums (Definition)

Government properties that are limited to certain groups or dedicated to the discussion of only some subjects.

Non-public Forums (Definition)

Government properties that the government constitutionally can and does close to speech.

Designated Public Forums (Definitions)

Government properties that the government could close to speech, but chooses to open to speech.

Regulatory Taking

Government regulation is a taking if it leaves no reasonable economically viable use of the property. NOT a taking it the regulation simply decreases value.

Establishment Clause ( Definition)

Government shall make no law respecting the establishment of religion. A government action involving religion is constitutional unless it passes the "Lemon Test"

Fourth Amendment requires conduct be...

Governmental conduct.

What kinds of assignment can be revoked?

Gratuitous assignments.

Habit v. Character Evidence

Habit evidence is admissible; character evidence is usually inadmissible. Character evidence says something general about a person and conveys a moral judgment. Habit evidence describes specific conduct and makes no moral judgment.

Admissibility of Habit Evidence

Habit of a person to act in a certain way is relevant and admissible to show the person acted in accordance with the habit on the occasion in question.

Conditional deed delivery

Handing over of deed with conditions attached. If the conditions are in writing, the grantor creates a future interest. If the conditions are oral, the plurality rule says to ignore the oral conditions and consider delivery complete. If the delivery is conditioned on Grantee's payment of purchase price and instructed to escrow, then once if is delivered to escrow Grantor cannot receive the deed back as long as Grantee pays.

What test applies if prosecutor impermissibly comments on defendant's silence?

Harmless error test.

What happens if D states that he lacks sufficient information to admit or deny in the answer?

Has the effect of a denial.

What is the general test for whether an offer exists in contract?

Has there been a "manifestation of commitment"? Would a reasonable person in the position of the offeree believes that his or her assent creates a contract?

Doctor + Duty of Care to Disclose Risks of Procedure

Health professionals owe a duty to provide a patient w/ enough information about the risks of a proposed treatment/procedure to enable patient to give "informed consent." If an undisclosed risk is serious enough that a reasonable person in the patient's position would not have consented to the treatment, the duty has been breached. Yet, patient plf must also prove actual/proximate cause and damages. A surgical procedure w/ undisclosed risks that does not result in damages will not be sufficient to establish a prima facie case for negligence.

Proximate Cause + Indirect Cause Cases

Here, an affirmative intervening force comes into play after D's negligent act and combines with it to cause P's injury.

Partial response to discovery request + court's power

Here, responding party answer some questions but objects to others. Requesting party will make a motion to compel answers, and the court will decide whether the objections were legitimate.

No response to discovery request

Here, the responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production.

Repairs of the Easement (General Rules)

Holder of the benefit of the easement (dominant estate) is responsible for making any necessary repairs to the easement. Holder of the easement (dominant estate) can always go on the servient estate to repair the easement, even if the terms of the easement do not specifically provide for that right. Holder of the easement must make reasonable restoration of the servient estate after making repairs to the easement. Unless the easement says otherwise, the holder of the servient estate has no repair obligation.

What happens if life tenant fails to pay taxes on the property?

Holder of the future interest must be sure that the taxes are paid because a tax sale will eliminate the future interest. The buyer at the tax sale takes the property free and clear of the future interest.

Dwelling (Burglary)

House of another. Cannot be barn or commercial structure.

In non-contingent fee cases, agreements must include... (PR)

How the fee was calculated; what services are covered; and the lawyer's and client's duties. CA: Requires agreements be in writing, unless (i) the fee is $1,000 or less, (ii) with a corporate client, (iii) for routine services for a regular client, or (iv) it's an emergency or impractical.

Field Preemption

If Congress evidences and clear intent to preempt state law, federal law preempts state law.

RAP + Class Gifts

If RAP operates to VOID the gift to ANY member of the class because their interest might vest outside the time frame of the Rule, then all class members lose. The entire class is VOID, even if there are persons who satisfy the class definition and therefore appeared vested in their interest. "Bad as to one--Bad as to all".

Adverse Possession and Disability

If a True Owner is suffering from any of the 3 I's at the time the period of adverse possession begins, then the clock for adverse possession will NOT start to run until the True Owner is free of the disability. An intervening disability does not stop the clock.

Forfeiture Clause in a Land Sale Contract

If a debtor misses a payment, the seller can cancel the contract, keep all the monies paid to date, and retake the property. These will be enforced, even though courts are hostile towards them. If seller chooses to enforce a forfeiture clause, the Seller is limited to that remedy and cannot also obtain damages or specific performance.

Excuse by frustration

If a later law makes a mutually understood purpose of the contract illegal, then the parties are excused by frustration.

Deficiency Judgment (Definition)

If a sale of foreclosed property does not bring enough to satisfy a mortgage debt, the mortgagee/lender can bring a personal action against the mortgagor/debtor for the deficiency (as long as the jurisdiction does not bar deficiency judgments).

Special venue rule for defendants' residence

If all Ds reside in different districts of the same state: P can lay venue in the district in which any D resides.

When will a writing satisfy the Statute of Frauds under common law?

If all material terms are stated (all material terms test) and the writing has been signed by the defendant.

Confinement (False Imprisonment) + Alternate routes

If alternate routes are available and known, confinement element not met.

Right of Partition + Joint Tenancy/Tenants in Common

If any tenant wants to be relieved of common ownership he or she can do so by asking that the property be partitioned--VOLUNTARY termination of the joint tenancy/tenancy in common.

Exception to Ameliorative Waste Liability

If changed conditions have made the property relatively worthless/uninhabitable, then the life tenant can alter the property without incurring liability to the holder of the future interest.

Conflicts b/t or among Clients: New clients in matters related to former clients'

If confidential information from a former client might be relevant to a new client's matter, you may be violating your continuing duty of confidentiality and your duty of loyalty to your former client. RULE: You cannot take on a new client with interests materially adverse to a former client without the former's consent.

Assisting in a crime (PR)

If continued representation would require you to commit or assist in committing a crime, you must withdraw. If your client persist in criminal acts, but you are not assisting you may withdraw.

What is the one exception to the "character evidence doors open separately" rule?

If court admits defense evidence of victim's violent character, prosecution offers evidence of defendant's violent character.

When is part payment consideration for an agreement to release debt?

If debt is due and undisputed, then part payment is not consideration for release. If the debt is not yet due or is disputed, then part payment will be consideration for release of that debt.

Imperfect Self-Defense

If defendant has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce murder to manslaughter. Only some states recognize.

Defenses to Felony Murder

If defendant has defense to underlying felony, then he has a defense to felony murder.

When is causation satisfied under intentional tort?

If defendant's conduct was a substantial factor in bringing about the injury.

Mootness

If events after the filing of a lawsuit end the P's injury, the case must be dismissed as moot. THREE EXCEPTIONS.

Conflict Preemption

If federal and state laws are mutually exclusive, federal law preempts state law. I.e., is it not possible to comply with both laws? Then state law is preempted.

Death of grantor in possession of deed

If grantor dies and the deed is still in grantor's possession, there is a presumption of no delivery, which may be rebutted by Grantee.

Generally, ignorance of the law is no defense to criminal action, but...

If ignorance pertains to elements of a crime rather than the existence of law, it may negate the state of mind required for the crime.

When is contact "harmful" (Intentional tort of Battery)?

If it causes actual injury, pain or disfigurement.

When is contact "offensive" (Intentional tort of Battery)?

If it would be considered offensive to a reasonable person OR where contact is unpermitted. Objective standard.

Motion for Judgment as a matter of law

If judge grants this, case will not go to jury. Motion based upon evidence presented. Standard: Reasonable people could not disagree about the result. Court views evidence in light most favorable to the non-moving party.

Excuse by impossibility

If later law makes performance of a contract illegal, then the parties are excused by impossibility.

Waiving objections to jury instructions

If objections are not made before the jury is charged, the party cannot raise a problem with jury instructions on appeal. WITH ONE EXCEPTION: If jury instructions contained plain error that affects substantial rights.

Touch and Concern Requirement

If performance of a covenant makes the land more valuable or more useful, then the covenant touches and concerns the land. Otherwise, the promise is personal to the original grantee.

Illusory Promise

If promisor reserves the right to terminate the agreement at any time without notice.

Remand

If removal to a federal court was improper, the federal court can remand the case back to the state court.

Object Preemption

If state law impedes the achievement of a federal objective, federal law preempts state law.

Prosecutor can comment on one aspect of defendant's silence--which aspect?

If suspect chooses to remain silent before police read him his Miranda rights, that silence can be used against him in court.

Transferred Intent

If the actor intended to kill or cause seriously bodily harm to one person and caused the death of another person, that intent will be transferred even though the actor did not intend to harm the actual victim. Similarly, privileges (e.g., adequate provocation) will also transfer over.

As between two mortgagees, what is the effect of a senior mortgagee advancing funds to the debtor?

If the advancement was a contractual obligation, a junior mortgagee will continue to receive no priority. If the advancement was optional, the junior mortgagee will receive priority with respect to only the amount of the advancement, not the senior mortgage as whole (majority view).

Interrogatories + Burden

If the answer to interrogatories can be found in business records and it would be burdensome to find the answers, the responding party can allow the requesting party to have access to the records.

Mistake + Privilege of Arrest (Torts)

If the arrest is for a misdemeanor, it is privileged only if for a breach of peace and if the action takes place in front of defendant. For a felony arrest, a police officer may make a reasonable mistake. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred.

Consent Exception to the Duty of Confidentiality

If the client consents, you may reveal otherwise confidential information. This may include "implied consent".

What is the exception to the general rule of "mixed deals" contracts?

If the contract expressly divides payment, then apply the UCC to the sale of goods part and common law to the rest.

Theories of enforcement for the 2 categories of restrictive covenants:

If the covenant is being enforced at law (money damages) = covenant running with the land. If the covenant is being enforced in equity (injunction) = equitable servitude.

Identifying a Strict Liability crime:

If the crime is in the administrative, regulatory, or morality area and you don't see any adverbs in the statute such as knowingly, willfully, or intentionally, then the statute is meant to be a no intent crime of strict liability.

Do contract modifications fall within the Statute of Frauds?

If the deal with the alleged change would be within the Statute of Frauds, then the alleged modification agreement must be in writing.

Elements of Defamation: Constitutional Requirements

If the defamation involves a matter of public concern, the Constitution requires the plaintiff to prove two additional elements (5) Falsity of the defamatory language; and (6) Fault on the part of the defendant.

What is the general rule of the Entanglement Exception?

If the discrimination is race-based, entanglement usually applies. If discrimination is not race based, it is much less likely to apply.

Tenancy at Sufferance + Raised rent

If the landlord gives the tenant notice of the increase in rent before the expiration of the lease, then the landlord may properly demand payment of the higher rent amount if the tenant holds over.

Acceleration Clause

If the mortgage includes this clause, the Debtor must pay off the entire balance of the mortgage in order to redeem the property.

Changes in Senior Mortgages

If the mortgagor does anything to increase a senior mortgage (e.g., borrows more money or increases interest rate), then that senior mortgage loses its priority over junior mortgages--BUT only to the extent of the change.

Distinguishing who is trying to enforce a covenant:

If the question shows that the successor-in-interest is the plaintiff, then we know that the person is trying to establish that the benefit of the covenant runs to the plaintiff. If the question shows that the successor-in-interest is the defendant, then we know that the plaintiff is trying to establish that the burden of the covenant runs to and binds the defendant.

Protective Order

If the responding party thinks a discovery requests subjects it to annoyance, embarrassment, undue burden, or expense they can move for a protective order. Party must certify that she tried in good faith to get the info without court involvement (she asked the other side to "meet and confer")

Buyer's Remedy + Unmarketable Title

If the seller cannot convey marketable title, the buyer may obtain specific performance of the land sale contract with an abatement of the purchase price in an amount reflecting the title defect. [this card is not finished]

Protected Commercial Speech + Government Regulation

If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest.

Illegal purpose + Contract enforceability

If the subject matter is legal, the agreement is enforceable IF the plaintiff did not have reason to know of the defendant's illegal purpose.

Illegal Subject Matter + Contract enforceability

If the subject matter of the agreement is illegal, the agreement is not enforceable.

Ademption

If the will purports to devise a specific parcel of land, but testator does not own the land at the time of her death, the gift is adeemed. This means the testamentary gift fails and will not be replaced by other property. ONE EXCEPTION

Excuse based on insecurity

If the words or conduct of one party give "reasonable grounds for insecurity," then the other party can, in writing, demand adequate assurance and if it is "commercially reasonable," can suspend performance until it gets adequate assurance.

Re-interrogation after invocation+ break (Miranda)

If there has been a break in "custody", the police can come back and ask defendant to waive his Miranda rights after 14 days.

Assault v. Battery (Criminal)

If there has been an actual touching, the crime is battery.

What if there are defects on property as of a date of closing?

If these defects render the property unfit for ordinary purposes, then... At common law: Buyer cannot recover from the seller; Caveat Emptor. There are exceptions to this rule. At common law, while the Seller had no obligation to disclose any defects to the Buyer, the Seller cannot actively conceal such defects. Modern Trend/Majority rule for residential property: Imposes duty to disclose to prospective buyer serious defects in the property that the seller knows of and which are not obvious to the buyer. Modern/Majority Rule: Implied warranty of fitness that applies only to sale of new residential housing by a Builder-Seller. Caveat Emptor continues to apply in all other situations.

When are reciprocal referrals with other professionals OK?

If they are not exclusive and you explain the arrangement to the client.

Effect of Retraction of anticipatory repudiation

If timely, the duty to perform is reimposed but performance can be delayed until adequate assurance is provided.

Wharton Rule

If two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling, sale of contraband), the "Wharton rule" states that there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime.

Terry Stop + Autos

If vehicle is properly stopped for a traffic violation and officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may conduct a frisk of the suspected person and may search the vehicle so long as it is limited to the areas in which a weapon may be placed.

When will a writing satisfy the Statute of Frauds under the UCC?

If writing indicates that there is a contract for the sale of goods, contains the quantity term, and is signed by the defendant (with a limited exception for transactions between 2 merchants where there is a delay in responding).

Inadvertently Sent Documents (PR)

If you know you were inadvertently sent, or intentionally but anonymously sent, you must stop reading and notify opposing counsel. Pending resolution, you must not copy, disseminate, or use the document to your advantage; you will be disqualified.

Duty to prevent your client from committing a crime

If your client is going to commit an act reasonably likely to result in reasonably certain death or substantial bodily harm, your disclosure of confidences is permitted. CA: You must first, if reasonable in the circumstances (i) make a good faith effort to persuade your client not commit the act, and (ii) inform the client of your decision to reveal his confidence. If your client's crime or fraud would only cause substantial financial loss, and if your services were employed in it, the ABA permits disclosure. CA: Forbids any disclosure for these crimes, although federal securities laws preempt this in part.

Exclusionary Rule Limitation: Impeachment

Illegally seized evidence may be admitted to impeach the credibility of only the Defendant's trial testimony (not other defense witnesses).

What is the exception to promise consideration?

Illusory Promise Exception: If promisor reserves the right to terminate the agreement at any time without notice.

When is claim for damages allowable under Anticipatory Repudiation?

Immediate if performance has not been finished. If performance has been finished, claimant must wait until contract date for payment.

Process of impeachment

Impeachment by the House of Reps requiring a majority vote. Then, conviction in the Senate requiring a 2/3 vote.

What defense may lower murder to manslaughter?

Imperfect self-defense.

Truth in Defamation cases: Common Law v. Constitutional

In Common Law Defamation, plaintiff does not have to prove falsity as part of the prima facie case. Rather, D can offer truth of the statement as a complete defense. In Constitutional Defamation, plaintiff must provide falsity as part of the prima facie case.

Larceny by Trick v. False Pretense

In LbT, only possession of property is obtained. If title is obtained, the offense is false pretenses. It depends on what the victim intended to convey: possession v. title/ownership.

Material Breach + Divisible Contracts

In a "divisible contract" there can be a contract law recovery for substantial performance of a divisible part even though there has been a material breach of entire contract.

Admissibility of relevant evidence re: Settlements and offers to settle/plea

In a civil case, evidence of settlement or offers to settle, and related statements are inadmissible to prove liability or fault. In a criminal case, pleas later withdrawn, offers to plea, and related statements are inadmissible to prove guilt. TWO EXCEPTIONS EXIST (1) Exception to settlement where no claim filed or threatened. (2) Exception to settlement rule where no dispute as to liability or damages.

What is the limitation of supplemental jurisdiction?

In a diversity case, P cannot use supplemental jurisdiction to overcome a lack of diversity.

In regards to character evidence, when is it important that the claim is a homicide claim?

In a homicide case, if defendant offers evidence victim attacked first, prosecution may offer evidence of victim's character for peacefulness.

When does jeopardy attach?

In a jury trial: When the jury is sworn. In a bench trial: When 1st witness is sworn in.

Where can Rule 12(b) defenses be asserted?

In a motion or in an answer.

Where does a business reside?

In all districts where they are subject to personal jurisdiction for this case.

What are the implied warranties of assignment?

In an assignment for consideration, the assignor warrants: (1) the right assigned actually exists, (2) the right assigned is not subject to any then existing defenses by the obligor, and (3) the assignor will do nothing after the assignment to impair the value of the assignment. Assignor does not warrant what the obligor will do after the assignment.

Custody (Miranda)

In custody if, at time of interrogation, a reasonable person would not feel free to leave (objective standard). In making this determination, a court will determine whether the situation presents the same inherently coercive pressures as a station house questioning.

Regulatory Takings + Decreasing Value of Property

In deciding whether a regulation that deprives an owner of some economic use constitutes a taking, a court will consider 1) the social goals sought to be promoted, 2) the diminution in value to the owner, and 3) whether the regulation substantially interferes with distinct, investment-backed objectives.

Failing to Tender Performance Upon Closing

In general, a party who fails to tender performance on the closing date has a reasonable time after the closing date to tender performance and avoid breach. Generally, the time of performance stated in a land sale contract is not absolutely binding. A party, even though late in tendering her own performance, can still enforce the contract if she tenders within a reasonable time after the stated date. Courts presume that time is not of the essence. However, this presumption may be overcome if: (i) The contract states that time is of the essence; (ii) The circumstances indicate that the parties intended that time is of the essence; or (iii) One party notifies the other within a reasonable time before the closing date that time is of the essence. If time is of the essence, a party who fails to tender performance on the closing date is in total breach and loses her right to enforce the contract. Moreover, even if time is not of the essence, a party that is unreasonably late in tendering performance will be liable for incidental damages.

Common Scheme + Equitable Servitude

In the absence of a writing, reciprocal negative servitudes may be implied if: 1) There is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant); and 2) The grantee had actual, record, or inquiry notice of the covenant. In a residential subdivision, a buyer would be on inquiry notice of a common scheme for development if the neighborhood appears to conform to common restrictions.

Adverse Possession and FSCS

In the case of an FSCS, the clock does not start running until the Grantor exercises his right of entry.

Adverse Possession and FSD

In the case of an FSD, the happening of the condition starts the clock running for purposes of adverse possession. Under the law of future interest, title went back automatically to the Grantor when the condition operated.

When must the waivable Rule 12(b) defenses be asserted (else they are waived)?

In the first Rule 12 response (Motion or answer).

To satisfy federal question jurisdiction, where must federal question must appear?

In the plaintiff's complaint.

When does perfect tender apply?

In the sales of goods.

Question of Subject Matter Jurisdiction

In what court in State X must the case be heard in--state or federal?

When must you raise affirmative defenses?

In your answer.

When can you bring the defense of improper process?

In your first Rule 12 response; otherwise, it is waived.

When can you bring the defense of improper service of process?

In your first Rule 12 response; otherwise, it is waived.

When can you bring the defense of improper venue?

In your first Rule 12 response; otherwise, it is waived.

When can you bring the defense of lack of PJ?

In your first Rule 12 response; otherwise, it is waived.

Via the Commerce Clause, what can Congress not regulate?

Inactivity

What kinds of defenses are inapplicable to intentional torts?

Incapacity defenses.

What does "real property" constitute in Trespass to Land?

Includes not only the surface, but also airspace and subterranean space for a reasonable distance.

How is the Bill of Rights applied to state and local governments?

Incorporation into the due process clause of the 14th Amendment EXCEPT 3rd amendment right to not have solider quartered in a person's home, 5th amendment right to grand jury indictment in criminal cases, 7th amendment right to jury trial in civil cases, and 8th amendment right against excessive fines.

Impleader claims are usually for what?

Indemnity or contribution.

Licensee

Individuals who enter land with permission but confer no economic benefit on possessor. E.g., social guest, unsolicited door-to-door (implied consent).

Invitee

Individuals who enter with express/implied permission for the economic benefit of the owner or are open to the public at large. One loses invitee status if they exceed the scope of the invitation, such as entering a portion of the land that you are not permitted to enter or being on the premises at a time outside the scope of the invitation.

What are the 3 adverse possession disabilities?

Infancy, Incarceration, and Insanity

Self-Defense is not available to the...

Initial aggressor unless the other party responds to the aggressor's non-deadly force by using deadly force.

Involuntary intoxication is a form of...

Insanity

Land Sale Contract

Installment land sale contract refers to the arrangement where the debtor signs a contract promising to make payments to the seller/lender--but the lender keeps title to the property until the loan is paid in full.

Process required for punitive damages

Instruction to jury and judicial review to ensure reasonableness. Cannot be grossly excessive.

Felony intent requirement (Burglary)

Intent must exist at the time of breaking and entering, or it is NOT common law burglary.

What makes a third-party beneficiary an intended beneficiary?

Intent of the two parties to contract determines whether intended or incidental. Intended beneficiary will always be named in the contract.

Abandonment of an Easement

Intent to abandon must be manifested by the holder of the dominant estate taking some physical action that would show his intent to abandon (like building a wall over her prior access), in which case no writing is required to terminate the estate. Mere non-use by itself does not constitute abandonment.

Timing of Intent (Larceny)

Intent to deprive owner permanently must exist at the time of the taking or it is not common law larceny. BUT if a person takes property not intending to steal it, but then later decides to keep the property, can be guilty of larceny under the theory of continuing trespass.

What intent is required for Trespass to Chattels?

Intent to trespass is not required; intent to do the act of interference is all that is needed. Defendant's mistaken belief that he owns the chattel is no defense.

Battery needn't be... (Criminal)

Intentional (criminal negligence is enough).

What is the only intentional tort that doesn't necessarily involve intentional conduct?

Intentional Infliction of Emotional Distress, which is satisfied by recklessness with regard to whether an act will cause severe emotional distress.

What is the only intentional tort that requires proof of damages?

Intentional Infliction of Emotional Distress.

State of Mind required for Premeditated murder

Intentional/Knowledge.

What level of scrutiny is used for gender classifications?

Intermediate scrutiny is used, but the government must show an exceedingly persuasive justification.

What test must contract interference with private contacts meet?

Intermediate scrutiny, but different from traditional intermediate scrutiny. Ask: (1) Does the legislation substantially impair a party's rights under an existing contract? (2) If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

What level of scrutiny is used for non-marital children?

Intermediate scrutiny. Laws that deny a benefit to all non-marital children, but grant it to all marital children is unconstitutional.

Where should you put client money?

Into a client trust account. This includes money received on his behalf, and his advances for costs, expenses and unearned fees.

Are liquidated damage clauses valid?

Invalid if the damages are too high (i.e., a penalty). Tests are (1) damages were difficult to forecast at the time contract was made and (2) provision is a reasonable forecast.

Contract provides "all assignments of rights under this contract are void"--Prohibition or Invalidation?

Invalidation.

Public Disclosure of Private Facts About Plaintiff

Involves public disclosure of private information about plaintiff that is highly offensive to a reasonable person of ordinary sensibilities. Liability can attach even though actual statement is true.

Relevance + Admissibility

Irrelevant evidence is inadmissible. Relevant evidence might be admissible.

Taking property in the belief that it is yours...(Larceny)

Is NOT common law larceny.

Sole question in determining Federal Question jurisdiction:

Is P enforcing a federal right?

Record Notice

Is a constructive notice arising from the record. In order to impart record notice, a deed must be recorded in the buyer's direct chain of title--so that a subsequent purchaser can find it and inspect it.

May a contract state that all modifications must be in writing?

It depends. At common law, contract provisions requiring that all modifications be in writing are not effective. Under the UCC, these provisions are effective unless waived. Regardless, you must still follow the general rules re: the Statute of Frauds and contract modifications.

How does assumption of risk operate in conjunction w/ comparative & contributory negligence?

It is a complete defense, even in jurisdictions that have adopted comparative and contributory negligence.

What powers are terminated after an offer is accepted?

It is no longer possible for the offeror to revoke or for an offeree to reject.

Warranties + Limitation of remedies

It is possible to limit remedies even for express warranties provided it is not unconscionable.

What is the two exceptions to peremptory challenges in jury selection?

It is unconstitutional for the prosecutor or defense to exercise peremptory challenges to exclude from the jury prospective jurors on account of their race or gender.

What if a state law does not discriminate against out-of-staters, but burdens interstate commerce?

It violates the dormant commerce clause if it burdens exceed its benefits.

What if a state law discriminates against out-of-state and burdens interstate commerce?

It violates the dormant commerce clause unless it is necessary to achieve an important government purposes. TWO EXCEPTIONS.

When will a right to amend by the court be granted?

It will be granted if "justice so requires". What factors do courts look to in ruling on the issue? Delay, prejudice, futility of amendment.

Where it the citizenship of an unincorporated association (e.g., partnership or LLC)?

Its citizenship is the citizenship of each of its members (including ALL partners).

When will joinder of a necessary party be feasible?

Joinder is feasible if: (1) There is PJ over you and (2) Joining you will not goof up diversity jurisdiction.

What are the concurrent estates in land?

Joint Tenancy,Tenancy in Common, and Tenancy by the Entirety

Who are the only parties who are absolutely disqualified from testifying?

Judges and jurors.

Former third-party neutrals and conflicts of interest (PR)

Judges, clerks, arbitrators and other third party neutrals require consent of all parties. CA: Explicitly DQ's a prosecutor in a case form laster working on the defense side of that case.

Recording Statutes + Judgment Creditors

Judgment creditors generally NOT protected by recording statutes.

Motion for a New Trial

Judgment is entered, but some error at trial requires that we should start over and have a new trial. Can be based on any non-harmless error that makes the judge think we should have a do-over.

Foreclosure eliminates...

Junior interests.

How is a necessary party to any foreclosure proceeding?

Junior interests.

Supplemental Jurisdiction

Jurisdiction which gets a non-federal, non-diversity claims into federal court. But the case itself must already be in federal court.

Standard for RJMOL

Jury reached a conclusion that reasonable people could not have reached.

Who must determine aggravating factors justifying imposition of the death penalty?

Jury.

Misdemeanor Manslaughter

Killing someone while committing (1) a misdemeanor or (2) an unenumerated felony.

Duty to state the law truthfully:

Knowingly making a false statement of law or presenting frivolous claims or defenses to the court is subject to discipline. Be candid about the law and cite to adverse authority if controlling and on point.

Extortion

Knowingly seeking to obtain property or services by means of a future threat.

Assignment + Rent

LL's acceptance of rent payment from an assignee approves the assignment and waives the no-assignment clause permanently.

What do you look for in a potential suretyship agreement?

LOOK FOR A GUARANTEE (guarantee to pay another person's debts only if that person does not herself pay).

Which of the Rule 12(b) defenses are "waivable"?

Lack of PJ, improper venue, improper process, and improper service of process.

Which of the Rule 12(b) defenses can be brought any time until all appeals have been exhausted?

Lack of subject matter jurisdiction

Negligent repairs undertaken by landlord exception (landlord tort liability)

Landlord is liable for any repairs that he agrees to make but does so negligently.

Latent Defect Exception (Landlord Tort Liability)

Landlord is under a duty to disclose latent defects which the landlord either knows or has reason to know of. Landlord has no duty to repair.

Public Use Exception (landlord tort liability)

Landlord may be liable to public harmed in the use of the leasehold. Requirements: (1) Landlord must know/should know of major defects. (2) Landlord must know/should know tenant will not fix the defect (3) Landlord must know/should know that the public will be using the premises.

Landlord's duty to deliver possession of the leased premises

Landlord must deliver possession of the leased premises to the tenant when the lease begins. If landlord cannot deliver actual possession, the landlord is in breach of the lease.

Common passageways under landlord's control exception (Landlord tort liability)

Landlord will be liable if the landlord failed to exercise reasonable care in a common area (areas that the landlord still exercises dominion and control over).

What are the rules re: underground water rights?

Landowner is entitled to reasonable use of ground water, although the landowner must use it on the property and not export it somewhere else.

Perpetuities Savings Clause

Language included in order to save a grant from violating the Rule Against Perpetuities by making sure that vesting must occur within the time period of the Rule.

Invalidation on Assignment

Language of invalidation takes away both the right to assign and the power to assign so that there is a breach by the assignor and no rights in the assignee.

Prohibition on Assignment

Language of prohibition takes away the right to assign but not the power to assign, which means that the assignor is liable for breach of contract, but an assignee who does not know of the prohibition can still enforce the assignment.

Defamatory Language (Torts)

Language tending to adversely affect one's reputation. A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient.

Larceny by Trick

Larceny in which consent has been received (no trespass), but has been received through fraud/misrepresentation.

Multiple Gratuitous Assignments: What result?

Last assignee generally wins.

Strict Scrutiny Review

Law will be upheld if it is necessary to achieve a compelling government purpose. "Necessary" means that there are no less restrictive alternatives. Court only looks to government's actual purpose. Government has burden of proof.

Rational Basis Review

Law will be upheld if it is rationally related to a legitimate government purpose. "Legitimate" may be any conceivable, permissible purpose (needn't be actual purpose). Challenger has burden of proof.

Intermediate Scrutiny Review

Law will be upheld if it is substantially related to an important government purpose. "Substantially related" means any good of way of promoting purpose (narrowly tailored); needn't be best way. Court only looks to government's actual purpose. Government has burden of proof.

Right to Vote + Level of scrutiny

Laws that deny some citizens the right to vote must meet SS, but regulations of the electoral process to prevent fraud only need be on balance desirable (i.e., protect legitimacy or integrity of elections). Use of race in drawing election district lines must meet SS. Counting uncounted votes without standards in a presidential election violates equal protection.

Freedom of Association Rules + Standard of Review

Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven: (1) Actively affiliated with the group; (2) Knowing of its illegal activities; and (3) With the specific intent of furthering those illegal activities.

Right to Travel + Level of scrutiny.

Laws the prevent people from moving into a state must meet SS. Durational residency requirements must meet SS (e.g., laws that tie benefits to 1 year of residency violate SS). Restrictions on foreign travel need only meet rational basis review.

Lawyer Referral Service Rule

Lawyer may pay the usual charges (not considered against referral/fee-splitting rules).

Organizational clients (PR)

Lawyer must act in the best interest of the entity, even if an officer/employee acts to the contrary.

What real estate interests are not within the Statute of Frauds?

Lease agreements of a year or less.

Leased Land + Adverse Possession

Leasing land to a third party constitutes possession for purposes of adverse possession.

Amount in controversy + legal costs and interest from the date of judgment

Legal costs and interest from the date of judgment cannot be included in the amount in controversy.

What kinds of opinions are not "helpful" (and thus not allowable testimony)?

Legal opinion (b/c they give the jury less information than testimony describing witness's perceptions).

Congress's/President's power to veto

Legislative veto and line-item veto vetos are unconstitutional. There must always be (1) Bimcameralism and (2) Presentment.

Duties of Lessor and Lessee of Realty

Lessee has a general duty to maintain the premises. The lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. However, as a possessor of land, the lessee still owes the standard duty of care to his licensees/invitees.

Products Liability (Definition)

Liability of a supplier of a defective product to someone injured by the product.

Vicarious Liability

Liability that is derivatively imposed.

What are the types of defamation?

Libel and Slander.

Revocation of a License

License can always be revoked at the will of the licensor. The licensor must manifest some intent to revoke. If the revocation is wrongful, the licensor may have to pay contract damages.

Life Estate + Mortgage Debt

Life Tenant in possession must pay interest on any mortgage indebtedness on the property but is NOT required to make any principal payments. The holder of the future interest generally must pay the principal. Subject to same limitation as repair obligations.

Life Estate Pur Autre Vie

Life estate measured by the life of another.

Under the modern rule, what happens to a life estate pur autre vie if the possessor dies before the measuring life?

Life estate passes to the estate of the deceased life tenant and continues in place until the measuring life dies.

Life Estate + Insurance

Life tenant does not have to insure property. However, life tenant does have an insurable interest.

Life Estate + Repairs

Life tenant has obligation to make ordinary repairs but not replacement. Repair obligation is limited to the amount of rents and profits from the land. If there are no rents and profits, then the repair obligation is limited to the reasonable rental value of land IF the life tenant is used the land. If life tenant is receiving NO income from the property and is not otherwise using the property, then life tenant has no repair obligation.

Forum non Conveniens

Like transfer, but there is another court that is the center of gravity, that makes more sense than the present court.

License (Property)

Limited privilege to use land in the possession of the licensor. NOT a property interest; Licenses are contract rights.

Effect of partition in kind (Joint Tenancy/Tenancy in Common)

Lines are drawn and the party seeking a partitioning is no longer a joint tenant and will own his or her portion outright.

How does a "Waiver by mail" work?

Mail to D a copy of the complaint and 2 copies of a waiver form with prepaid means of returning the form. If D executes and mails waiver form to P within 30 days, D waives formal service of process.

When can deadly self-defense be used?

Majority Rule: Anytime victims reasonably believes that deadly force is about to be used on him. Minority Rule: Victim is required to retreat if it is safe to do so (3 exceptions exist).

Overt Act requirements (Conspiracy)

Majority Rule: Must be agreement + an over act in furtherance of the conspiracy. Minority Rule: Conspiracy created with agreement itself. (common law rule)

What is a "Claim" for res judicata purposes?

Majority view: A claim is any right to relief arising from a transaction or occurrence. Minority view: There are separate claims for property damage and for personal injuries because those are different "primary rights".

Two Mortgage Severance theories (Joint Tenancy)

Majority: Lien theory--No severance of the joint tenancy. When mortgage is executed, a lien attaches to the title, but title is not transferred. Unities are not distributed until foreclosure. Minority: Title theory--is a severance of the joint tenancy. When mortgage is executed, title passes from mortgagor to mortgagee, even though title goes back to the mortgagor when the mortgage is satisfied.

In any case where there is a duty owed to an entrant of land, how may a possessor of land satisfy his duty?

Make the condition in question safe or give an adequate warning.

Arson mental state

Malice; reckless indifference of an obvious risk that the structure would burn.

What are the types of defects?

Manufacturing defects, design defects, and inadequate warnings.

Marketable Title (definition)

Marketable title is title that a reasonably prudent buyer would accept, which means minor defects do not matter (since they do no present significant threat of litigation).

Work Product

Material prepared in anticipation of litigation. Generally protected from litigation.

Exceptions for out of court statements (PR)

Matters in the public record or routine booking information, warning the public, informing them of an ongoing investigation, and statements required to protect your client from substantial undue prejudice from recent publicity not self-initiated.

What are the limitations on the use of transferred intent (Torts)?

May be invoked only if both the tort intended and the tort that results are one of the following: Assault, Battery, False Imprisonment, Trespass to Land, or Trespass to Chattels.

"Relation Back"

Means you treat the amended pleading as through it was filed when the original was filed, so it can avoid a statute of limitations problem.

What is "just compensation"?

Measured in terms of loss to owner; gain to government is irrelevant. Reasonable fair market value.

Examples of dependent intervening forces (Proximate Cause)

Medical malpractice, negligence of rescuers, efforts to protect person/property of oneself or another, injuries caused by another "reacting" to D's actions, subsequent diseases caused by weakened condition, and subsequent accident substantially caused by original injury.

What type of protection does the Constitution provide for economic liberties?

Minimal protection.

How many jurors must there be in a criminal jury trial?

Minimum is 6. But, if a court uses this minimum, the verdict must be unanimous. No federally protected constitutional right to a unanimous 12 juror verdict. 10-2 and 9-3 have been approved.

Fruit of the Poisonous Tree doctrine does not apply to...

Miranda violations UNLESS the police act in bad faith in obtaining such information.

Spontaneous Statement (Miranda)

Miranda warnings are not required prior to the admissibility of such statements.

Misrepresentation v. Non-disclosure (Contract)

Misrepresentation matters and can make an agreement unenforceable. Non-disclosures are irrelevant because a person making a contract has no duty to disclosure. The only exceptions are if the parties are in a fiduciary-like relationship or concealment exists.

Intentional/Negligent Misrepresentation cannot be brought with regards to misrepresentations about what kind of fact?

Misrepresentations as to future events (b/c the def doesn't have control over such things)

Reasonable v. Unreasonable Mistake of Fact Defense:

Mistake must be reasonable to be a defense to a malice or general intent crime. Any mistake of fact is a defense to a specific intent crime.

Statutory Rape + Mistake

Mistake of Fact is no defense.

Restrictions on Alienation + Life Estates

Modern rule allows a provision that terminates the life estate IF the life tenant attempts to convey away the life estate.

Modification of an assignment

Modification agreements between obligor and assignor are effective if the obligor didn't know of the assignment. Otherwise, assignee is required.

Modification (substituted agreement) Definition

Modification is an agreement by parties to an existing obligation to accept a different agreement in satisfaction of the existing obligation.

Purchase Money Mortgage + Priority

Mortgage taken out to BUY property. A PMM will receive priority over other mortgages that were executed prior to the PMM--even if the earlier mortgage is recorded first. PMM given by the seller usually gets priority over a PMM given by a third party.

Mortgagee's Transfer of Note

Mortgagee can freely transfer the note and the mortgage will always follow the notes it secures.

Attractive Nuisance Doctrine

Most court impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous, artificial conditions on his property. To establish the doctrine's applicability, the plaintiff must show: (1) A dangerous, artificial condition on the land that the owner is or should be aware of; (2) the owner knows or should know children frequent the vicinity of the condition; (3) the condition is likely to cause injury b/c children cannot appreciate the risk; and (4) the expense of remedying the situation is slight compared with the magnitude of risk. Child does not have to be attracted onto the land by the dangerous condition (majority), nor is the attractiveness alone enough for liability.

NIED and physical symptoms

Most courts require that D's conduct causes the P emotional distress that manifests itself in physical symptoms (except the modern trend is to drop this requirement for bystander liability). BUT remember corpse exception

What is a 12(b)(6) motion brought after D has already answered?

Motion for Judgment on the Pleadings.

Multiple offers + Revocation

Multiple offers are not revocation.

Murder

Murder (common law/second degree murder) is the unlawful killing of another human being with malice aforethought. Malice aforethought can be satisfied by (i) the intent to kill; (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life; or (iv) the intent to commit a felony. The intent to kill is deemed to be "express malice," whereas, in the latter three, malice is implied.

2nd Degree Murder

Murders not classified as 1st Degree murders. Often classified as "depraved heart" killings.

Crossclaim rules

Must arise from the same T/O as the underlying action. However, it is not compulsory--it may be asserted in a separate action.

Process required for American citizen held as enemy combatant

Must be accorded due process.

Requirements for warnings (Products Liability)

Must be adequate. Must be prominent. Warnings will not avoid liability unless the product cannot be redesigned. A warning by itself is insufficient if it would not be effective in communicating the danger of the product.

Extra Common Law Requirement for Burglary

Must be at night.

Assertion of privilege in discovery

Must be done expressly with a description of materials in detail. You must provide a privilege log.

Miranda waiver requirements

Must be knowing and voluntary.

Robbery Threat requirement

Must be threat of imminent harm.

Invoking right to counsel + Re-interrogation (Miranda)

Must be unambiguous. If invoked, all questions must cease until (1) accused is given an attorney or (2) the accused initiates further questioning.

Invoking right to silence + Re-interrogation (Miranda)

Must be unambiguous. Police may reinitiate questioning after invocation if they wait a significant amount of time, defendant is re-mirandized, and the questions are limited to the crime that was not the subject of the earlier questioning.

How does one execute a deed?

Must comply with the Statute of Frauds. Deed must describe the land with sufficient accuracy in order to pass title (enables you to identify property being transferred). If you cannot identify the property, then the deed is void for vagueness and no transfer occurs. Parol evidence may be used to clarify deed description.

Making the demand for jury trial.

Must demand the jury in writing no later than 14 days after service of the last pleading raising jury triable issue. If you don't you waive the right to a jury.

Accomplice Withdrawal if accomplice aided crime:

Must do everything possible to neutralize assistance.

What must exist for Supreme Court review of a state court decision?

Must not be an independent and adequate state law ground of decision. If a state court decision rests on 2 grounds, one state law and one federal law, if the Supreme Court's reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it.

Accomplice Withdrawal if accomplice encouraged crime:

Must reprudiate the encouragement.

After D serves a counterclaim against P, what does P have to do?

Must respond under Rule 12 within 21 days.

What must the government do if it effects a taking without a public use?

Must return the property.

What must be shown for educational institutions may use race as a factor in admissions decisions to help minorities

Must show that there is no race neutral alternative which would achieve diversity. Additionally, the institution must not add points to admissions scores based on race. However, public school systems may not use race as a factor in assigning students to schools unless SS is met.

Requirements of a TRO

Must state its terms in specificity, describe in detail what D must do or refrain from doing, state why it was issued, and why the threatened injury to P was irreparable.

Mutual v. Unilateral Mistake of Fact (contracts)

Mutual mistake may render the contract unenforceable if three requirements are met. A unilateral mistake will generally not render a contract unenforceable, unless the other party had reason to know of the mistake.

Does a P have to allege grounds of PJ or venue in the complaint?

N o.

General common law rule re: tort liability of landlord and tenant

NO duty imposed on the landlord. No duty to tenant (or tenant's invitees) for injuries sustained on premises during period of lease. Landlord can expressly covenant to repair as part of the terms of the lease.

Easements in gross that are personal can...

NOT be transferred.

What disclosures must you make of "persons" in initial disclosures?

Name, telephone number and subjects on which they have information.

Conflicts b/t or among Clients: Former government lawyer moving to private practice

Narrow rules. If you were a government lawyer who worked "personally and substantially" on a "matter," the ABA bars you from working on that same "matter" in later private practice without the government's consent.

Adequacy of Miranda Warnings

Needn't be verbatim, so long as substance of warnings is conveyed.

Examples of independent intervening causes (Proximate Cause)

Negligent acts of third persons, crimes and intentional torts of third persons, and acts of God.

What are the consequences of an intentional failure to not give Miranda warnings?

Neither the illegally obtained statement or the nontestimonial fruits will be allowed in (although the stmt could come in for impeachment).

Factual Impossibility + Attempt

Never a defense—it is no defense to a charge of criminal attempt that it would have been impossible for the defendant to do all of the things he intended to do because had the attendant circumstances been as the defendant believed them to be, he would've been guilty of the substantive offense.

Measuring a life estate

Never measured by time, only measured by life.

Mistake of law is ____ a defense.

Never; unless the statute requires knowing the law as an element of the crime.

Accord

New agreement to an already existing obligation to accept a different performance in satisfaction of the existing obligation.

Satisfaction

New performance as required by an accord.

Duty of Possessor of Land to Those Off Premises (Negligence)

No duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. One must carry on activities on the premises so as to avoid unreasonable risk of harm to others off the premises. NOTE: weeds are natural, hedges are artificial.

Majority rule for self-defense

No duty to retreat. Modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in her home.

Generalized Grievances (Con Law)

No generalized grievances. P must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. ONE EXCEPTION.

Rule Against Perpetuities

No interest is good unless it must vest, if at all, not later than 21 years after the death of some life in being at the creation of the interest.

When can a party make a motion for summary judgment?

No later than 30 days after the close of discovery.

Rules re: Pretrial required disclosure

No later than 30 days before trial, parties must give detailed information about trial evidence (identity of witnesses to testify live or by deposition and documents/ESI/things to be introduced at trial).

Congress's power to delegate

No limit exists on Congress's ability to delegate legislative power. However, Congress may not delegate executive power to itself or its officers.

How many "for cause" juror strikes does a party get?

No limit.

How long is a TRO effective for?

No more than 14 days. If applicant shows good cause before expiration, it can be extended up to another 14 days. A TRO cannot extend past 28 days.

Tenancy for Years termination

No notice is required between Landlord and Tenant, it ends automatically on the stated end date.

Right to Contribution and Payment of Improvements

No right to contribution. But, any monies expended for improvements may be recouped later--at time of sale of the property or on partitioning of the property.

Privileges and Immunities Clause of 14th amendment

No state may deprive any citizen of the privileges and immunities afforded to a citizen of the U.S. ONLY ONE INSTANCE OF VIOLATION: No violations of the right to travel.

The Contract Clause (Definition)

No state shall impair the obligations of contracts.

Does the Statute of Frauds apply to "Tasks" (a type of service)?

No, because in assessing whether something is capable of being performed within a year, we look at what is theoretically possible within unlimited resources.

Is deponent required to review all her relevant files and notes before being deposed?

No, deponent testifies from her present recollection.

Does work product have to be generated by a lawyer?

No, it can be by a party or a representative of a party.

If the moving party meets the requirements of summary judgment, must the court enter it?

No, it is always discretionary (OR MAYBE NOT?)

Is there ever a right to an injunction?

No, it is always discretionary.

Must you assert an impleader claim if you have it?

No, it is never compulsory.

Can a preliminary injunction be granted ex parte?

No, never.

Is specific performance available as a remedy for contract for services?

No, possible injunctive relief (negative specific performance).

Can contract offers be assigned?

No.

Does the process server have to be appointed by the court?

No.

Is consideration required for an assignment?

No.

May parol evidence be used to change or contradict terms in a written deal?

No. Evidence of earlier agreements cannot be considered for the purpose of contradicting the terms in the written contract.

Does part performance of a services contract satisfy the Statute of Frauds?

No. However, recovery under quasi-contract may be available.

Must a jury be unanimous in a criminal trial?

No. If minimum of 6 used, then unanimity is required. If 12 used, 9-3 has been allowed.

Are damages required for a finding of assault (torts)?

No. P can recover nominal damages even if actual damages are not proved.

Are damages required for a finding of battery (torts)?

No. P can recover nominal damages even if actual damages are not proved.

Are damages required for a finding of false imprisonment (torts)?

No. P can recover nominal damages even if actual damages are not proved.

Is there ever a right to file a supplemental pleading?

No; it is always discretionary (up to court). Court will often do so unless it will cause delay or prejudice.

May evidence be used to support a witness's credibility?

No; such evidence is inadmissible unless credibility is attacked first.

Nominal damages + negligence

Nominal damages may not be awarded in the absence of proof of damages. P must present some evidence of damages, as an essential element.

Which arrests do require warrants?

Non-emergency arrests of an individual in his home.

Easement

Non-possessory interest in land involving a right to use the land.

Majority Rule limitations on deadly self-defense:

None (outside of belief of deadly force); no duty to retreat.

Requisite intent for Nuisance

None. Can be shown if D acting intentionally, negligently, or no fault at all.

Assignee (definition)

Not a party to an original contract; receives rights under a contract via assignment. Able to enforce the contract because of the assignment.

Third-party beneficiary (definition)

Not a party to the contract. Able to enforce contract other made for her benefit.

Offer Assignment

Not allowed.

Right of Partition in a Tenancy by the Entirey

Not allowed; the estate is not severable by unilateral act

Procedural Due Process (Definition)

Not being afforded adequate process when government deprives you of your person's life, liberty, or property.

General rule re: Past Consideration

Not consideration.

Trade Fixtures

Not considered fixtures. Chattels or items of personal property used in a trade or business. Trade Fixtures can always be removed so long as they are not an integral part of the premises and the tenant pays for any damages caused by the removal.

Well Pleaded Complaint Rule + Federal question jurisdiction.

Not enough that some federal issue is raised by the complaint. P's claim itself must "arise under" federal law. Ignore other material alleged by P or any affirmative defenses potentially asserted by D.

Minority View of Overt Act requirement (Conspiracy)

Not required. (common law rule)

Severability of the Tenancy by the Entirety

Not severable by the unilateral act of one of the co-tenants.

Transferability of Reversions

Not subject to RAP Freely transferable on death Freely transferable inter vivos

Transferability of Reverter

Not subject to RAP Freely transferable on death Freely transferable inter vivos

Transferability of Right of Entry

Not subject to RAP Freely transferable on death NOT freely transferable inter vivos

Under notice and race-notice statutes, what is the effect if notice is obtained after conveyance?

Nothing—a BFP who lacked notice at the time of the conveyance, then learns of the prior interest, can still prevail over a prior interest. These recording statutes require only that the subsequent purchaser have no notice at the time of the conveyance.

Process required before termination of welfare benefits:

Notice + Hearing

Process required for permanent termination of parental right to custody:

Notice + Hearing

Inquiry Notice

Notice arising from the buyer's physical inspection of the land and the visible appearance of the easement on the land Subsequent purchaser charged with notice of whatever such a physical inspection would reveal.

Process required before discipline of student by public school:

Notice of charges and opportunity to explain (no trial necessary).

Plausibility v. Notice Pleading.

Notice pleading was what federal courts traditionally required; now the Supreme Court requires more detail (plausibility pleading). In the complaint, P must plead facts supporting a plausible (not just possible) claim.

In a type 3 class, what must the court do (besides certification and appointing class council)?

Notify the class members that they are in the class. Must be individual notice to all reasonably identifiable members including that (1) they can opt out; (2) they'll be bound if they don't; and (3) they can enter a separate appearance through counsel. The representative will pay for such notice.

Who is liable after a novation?

Novation excuses the contracted for performance of the party who is substituted for or replaced.

How is delegation different from novation?

Novation requires the agreement of BOTH parties to the original contract, and excuses the person replaced from any liability for nonperformance. Delegation does not require the agreement of both parties and does not excuse.

What are the requirements for valid Substituted Service?

OK if: (1) Occurs at D's usual abode (use common sense); and (2) Service to someone of suitable age and discretion who resides there.

How can you serve an agent of D?

OK if: receiving service is in scope of agency.

Targeted Direct mail (PR)

OK, but must meet exact guidelines for labeling as "Advertising Material".

What is required to make an objection to form of testimony or questions?

Objection must be timely and specific or else the objection is waived.

Duty (Negligence)

Obligation to take risk reducing precautions.

What defenses does an obligor have in an assignment case?

Obligor has the same defenses against assignee as it would have had against assignor.

False Pretenses

Occurs when a defendant 1) obtains title; 2) to the property of another; 3) by an intentional or knowing false statement of past or existing fact; 4) with the intent to defraud the other.

Severance + Joint Tenancy

Occurs when any one of the four unities is disturbed. INVOLUNTARY termination of the joint tenancy.

Entering (Burglary)

Occurs when any part of the body crosses into the house.

Ouster (Definition)

Occurs when one tenant wrongfully excludes another tenant from possession/use of the property.

Partial Eviction

Occurs when the landlord physically excludes the tenant from only some portion of the leased property. May also occur where some third party, who holds paramount title, retakes the property and physically excludes the tenant from that portion of the leased premises. If there is partial eviction by someone other than the landlord, the rent is proportionately reduced to reflect the amount taken.

Ameliorative Waste

Occurs when the life tenant alters the property substantially but life tenant's activity increases the value of the land.

Adverse Posession

Occurs when the statute of limitations in ejectment cuts off the true owner's right to recover possession of the land. Once the statute runs, the true owner loses her title to the property.

Easements in Gross

Occurs where there is no dominant estate because there is only one parcel of land involved, which is the property burdened by the easement--of the servient estate. A person whose interest in land gives him the right to use someone else's land independent of his ownership or possession of his own tract holds an easement in gross.

What is required for a contract "agreement"?

Offer and Acceptance

Who controls the method of acceptance (Ks)?

Offeror.

Assignment: Offer v. Contract

Offers cannot be assigned but contracts can.

Probable Cause

Officer must have knowledge (but not necessarily personal knowledge) of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime or that evidence of a crime will be found in a location.

Evanescent Evidence + Blood

Officers ned to get a warrant before taking a blood sample for a DUI arrest (if it is practical to do so). Not a per se exigency.

False Imprisonment + Omissions

Omissions can be acts of restraint provided that some sort of duty exists.

Harmless Error Test

On appeal, conviction upheld if the conviction would have resulted despite the violation.

When are leading questions ok?

On cross-examination, provided cross stays within the scope of direct examination. On direct examination if the witness is an adverse witness, a hostile witness, or a witness needing help.

When are leading questions not ok?

On direct examination if witness is not an adverse witness, hostile, or a witness needing help.

Direct v. Cross re: Evidence of D's or victim's character to prove conduct

On direct examination: Reputation and opinion are admissible, specific instance evidence is not. On cross examination: Reputation, opinion, and specific instance evidence are all admissible.

Termination before contingency (PR)

Once contingency occurs, then terminated lawyer can recover in proportion to the work he did.

Attempt Abandonment (Majority View)

Once defendant has taken a substantial step toward committing the crime, abandonment is never a defense.

Rules re: Additional Calims

Once you file a counterclaim or cross claim you can join an additional claim to it even if that claim has nothing to do with others. Additional claims must invoke federal SMJ (or Supp. J).

Co-Tenants, sharing profits (general rule), and the 4 exceptions

One co-tenant does not have to account to another co-tenant for his share of the profits, subject to four exceptions. (1) Ouster: Accounting is required IF one co-tenant is EITHER keeping a co-tenant off the property, OR claiming a right of exclusive possession. (2) agreement to share (3) Lease of the property by a co-tenant to a third party (4) Depletion of natural resources

When is Defense of Others available (Torts)?

One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.

When is defense of property available (torts)?

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The defense does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously disposed the owner of her chattels b/c tort still being committed.

An offer is...(contracts)

One person's manifestation of willingness to contract. Creates if a reasonable person in the position of the offeree would believe that his or her assent creates a contract.

Non-mutual defensive issue preclusion

One using collateral estoppel was not a party to Case 1 and is a defendant in Case 2. Must courts say such use is ok so long as the claimant had a full chance to litigate the issue in Case 1.

Non-mutual offensive issue preclusion

One using collateral estoppel was not a party to Case 1 and is a plaintiff in Case 2. COULD NOT be done under the mutuality rule. HOWEVER, the clear trend is to allow such use if it is not "unfair" (balancing test).

Accomplice

One who aids, advises, or encourages the principal in the commission of the crime charged with intent that the principal committed the substantive offense. Mere knowledge that a crime could result from the aid provided is generally insufficient for accomplice liability.

Undiscovered Trespasser

One who enters without permission and possessor of land does not know that they have entered.

Defense of property is not against available against who (torts)?

One with a privilege. The privilege will supersede the privilege of the land possessor to defend her property.

False Imprisonment + Consent

One's consent precludes confinement from constituting false imprisonment.

What rule must be met for all state and local elections?

One-person, one-vote.

How many domiciles can a person have in determining citizenship?

One.

How many states can a person be a citizen of in determining diversity?

One.

Unilateral Approach (Conspiracy)

Only 1 person needs to have genuine criminal intent for a Conspiracy to exist.

When can evidence supporting a witness's credibility be introduced?

Only after that credibility has been attacked.

Where is additur allowed?

Only allowed in state court as it is a violation of the 7th Amendment.

Perfect Tender

Only applies to sales of goods. Goods and delivery must completely comply with the contract terms.

Fairness analysis of personal jurisdiction.

Only done if there is specific personal jurisdiction. Determine whether jurisdiction is fair by looking at: (1) Burden on D and witnesses: Needn't be most convenient forum. Forum is constitutionally OK unless D can show that it puts him at a severe disadvantage in the litigations (Relative wealth of parties is not dispositive). (2) State's interest: The forum state may want to provide a courtroom for it's citizens, who are allegedly being harmed by out-of-staters. Always true if P is a citizen of the forum. (3) P's interest.

How do you withdraw in a conspiracy

Only exists for co-conspirators' acts/subsequent crimes. Actor must (1) notify all members of the conspiracy that he has withdrawn and (2) this must be done in time for them to have opportunity to abandon the planned crimes.

Can a pleading ever be treated as evidence?

Only if it has been verified (under oath).

When is a delegatee liable under delegation?

Only if she receives consideration from the delegating party.

When can a party respond to a request for admission that she doesn't know the answer?

Only if the party states that she made reasonable inquiry and cannot find enough information to admit or deny.

When can the government require a license for speech?

Only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing scheme must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.

If the risk of loss in a contract is on the seller, can the buyer recovery damages from the seller?

Only if we are not dealing with identified goods (i.e., common goods).

What types of beneficiaries have contract law rights?

Only intended beneficiaries.

Under common law, what types of breaches allow for excused performance?

Only material breaches excuse a party from performing a contract.

Process required before termination of social security disability benefits:

Only post-term hearing

What kinds of property are subject to conversion?

Only tangible personal property and intangibles that have been reduced to physical form are subject to conversion.

What intent is required for conversion?

Only the intent to do the act that interferes with the plaintiff's right of possession. Mistake as to ownership is no defense.

Tenancy in Common Requirements

Only unity of possession required.

When are communications other than acceptance generally effective?

Only when they are received.

Can parties settle or dismiss a certified class action?

Only with court approval. Court gives notice to class members to get their feedback on whether case should be settled or dismissed. If it's a type 3 class, the court might give members a second chance to opt out.

Executory Interest

Operates to cut short the estate that comes before it.

When will expert opinions be admissible (requirements)?

Opinion must be: (1) Helpful to jury (2) Witness must be qualified (3) Witness must believe in opinion to reasonable degree of certainty (4) Opinion must be supported by a proper factual basis (5) Opinion must be based on reliable principles that were reliably applied.

Advisory Opinions (Con Law)

Opinion providing no redressability. Prohibited.

Opponent's rights re: refresh recollection evidence:

Opponent may inspect and offer into evidence anything used to refresh.

Appealing a preliminary injunction order

Orders granting or denying a preliminary injunction are immediately appealable.

Privity of Contract exists b/t (LL-T)

Original parties to the lease agreement, unless new tenant or landlord expressly assumed an obligation.

What is required for forum non conveniens?

Other court must be available and "adequate". P must be able to get her day in court (although difference in remedies will not disallow).

Obligor (definition)

Other party (the other being the assignor) to an original contract.

If the accord is not performed, how may the other party recover?

Other party can recover on either the original obligation or the accord.

If the accord is performed, how may the other party recover?

Other party can recover only on the accord, and NOT the original obligation.

What must another party do when you inadvertently produce privileged or protected material and notify?

Other party must return, sequester, or destroy it pending decision by the court about whether there has been a waiver.

Definition of Hearsay

Out of court statement offered to prove the truth of the matter asserted in that statement.

Suing state v. Suing state officers

Outside of a few exceptions, states may not be named defendants in cases. Suits against state officers are allowed however in more situations.

Anti-lapse statute/modern rule re: lapsing

Overwhelming majority of states have adopted anti-lapse statutes that prevent lapse by allowing the gift to pass to certain relatives of the predeceasing beneficiary.

Voluntary Dismissal rights

P can make a motion for voluntary dismissal anytime. P has a right to take a voluntary dismissal by filing a "notice of dismissal." But she must do so before D serves an answer or motion for summary judgment. If P files a timely notice of dismissal, the case is dismissed "without prejudice". Can only be done once without prejudice.

Damages + Libel

P does not need to prove special damages; general damages are presumed. Defamation will get to the jury without evidence re: damages.

Assumption of Risk defense

P may be denied recovery if she assumed the risk of any damage caused by D's act. P must have: (1) known of the risk and (2) voluntarily proceeded in the face of the risk. This is a complete defense even in a comparative negligence jurisdiction.

Where may P lay venue?

P may lay venue in any district where: (1) all defendants reside (BUT special rule); or (2) a substantial part of the claim arose.

Redressability Requirement for Standing

P must allege and prove that a favorable court decision is likely to remedy the injury.

Injury Requirement for Standing

P must allege and prove that he or she has been injured or imminently. P only may assert injuries that they personally have suffered.

Causation Requirement for Standing

P must allege and prove that the D caused the injury.

Entry of default does not entitle P to recover. What does P need to do before she can recover from D?

P must get a default judgment.

Common Elements of Product Liability Theory (not just strict liability)

P must show: (1) A defect, and (2) Existence of the defects when the product left D's control (inferred if product moved through ordinary channels of distribution)

What if D fails to return a "waiver by mail"?

P then has D served personally or by substituted service. If D did not have good cause for failing to return the waiver form there is a penalty for D. D must pay the cost of service.

Proving a design defect

P usually must show that the D could have made the product safer, without serious impact on the product's price or utility. The "feasible alternative" approach. If there are government regulations, failure to conform to the regulations proves a design defect.

Comparative Negligence

P's contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs P's negligence and reduces damages accordingly. Two types: Partial (Majority) and Pure (Minority; BUT ASSUME FOR MBE)

Who can never remove a state court action to federal court?

P.

Denial of right to counsel (Pre-trial identification)

POST-CHARGE lineups and show-ups give rise to right to counsel (does not exist for photographs).

Parol Evidence Rule + Contradiction/Change of Terms

Parol Evidence is not allowed for this purpose. Evidence of earlier agreements cannot be considered for the purpose of contradicting the terms in the written contract.

Satisfaction of the Statute of Frauds via Performance (Real Estate)

Part Performance satisfies the Statute of Frauds in transfer of real estate when any two of the three exist: (1) Improvements to the land; (2) payment; and (3) possession.

Satisfaction of the Statute of Frauds via Performance (Sale of Ordinary Goods contracts)

Part performance of a contract for the sale of goods satisfies the Statute of Frauds, but only to the extent of the part performance.

Who can you send a request to produce to?

Parties and non-parties, but you should subpoena the non-parties.

To whom can you send interrogatories?

Parties only.

To whom can you serve a request for admission?

Parties only.

When co-tenants are squabbling and cannot come to an agreement as to the use of a property, the remedy of _____ terminates the tenancy and divides the common property.

Partition

Ways that a partition can occur (Joint Tenancy/Tenancy in Common)

Partition can be by voluntary agreement between the parties or if the parties cannot reach an agreement, then a judicial action seeking partition may be brought.

What happens if a party fails to identify someone she was required to identify in the initial disclosures?

Party cannot use that witness in the case.

What happens if a party fails to identify an Expert Witness and provide required information?

Party cannot use the EW in their case unless the failure was justified or harmless.

When can a party discover work product?

Party must show (1) a substantial need and (2) that the information is not otherwise available.

Who can you take the deposition of?

Party or non-party but you should subpoena a non-party to compel attendance. You needn't subpoena a party to the case, just serve a notice of deposition.

In order a medical exam, who chooses the examiner?

Party seeking the order.

Delegation (Definition)

Party to a contract transfers duties under the contract to a third party.

Assignor (definition)

Party to a contract who later transfers rights under the contract to another.

Against whom may Rule 11 sanctions be ordered?

Party, attorney, or firm.

Bicameralism

Passage by both the House and the Senate.

Payment of goods w/o Opportunity to Inspect + Acceptance

Payment w/o opportunity for inspection is not acceptance.

How can Congress induce state government action through "strings on grants"?

Permissible, so long as... (1) the conditions are expressly stated; and (2) relate to the purpose of the spending program; and (3) are not unduly coercive.

Conflicts b/t or among Clients: Two clients w/inconsistent positions

Permissible; positions do not credit conflicts. If either client would be disadvantaged you must obtain consent.

Landlord's consent to Assignment/Sublease

Permission given once means that a non-assignment/sublease clause is waived altogether, unless the landlord reserves the right at the time of giving permission.

Acceleration Clause (Property/Mortgages) Definition

Permits the mortgagee to declare the full balance due in the event of default; the full balance must be paid in order for the debtor to redeem the land in equity before the foreclosure.

Promisor (Third-Party Contract)

Person making promise that benefits the third party.

Promisee (Third-Party Contract)

Person who obtains the promise that benefits the third party.

What type of invasion is required for Trespass to Land (torts)?

Physical Invasion: May be by a person or object. Does not include intangible matter (plaintiff may have a case for nuisance).

Public Forums (Definitions)

Places historically open to speech activities.

Damages required in Trespass to Land:

Plaintiff can recover without showing actual injury to the land.

"Of or concerning" Plaintiff requirement for Defamation (Torts)

Plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. Can refer to plaintiff by name or any other identifiable characteristics. E.g., defamation of all the members of a small group gives the cause of action to each individual member.

What awareness is required by the plaintiff under the intentional tort of false imprisonment?

Plaintiff must know of the confinement or be harmed by it.

Slander + Damages

Plaintiff must prove special damages, unless defamation falls within Slander Per Se. Failure to prove damages will lead to directed verdict against the plaintiff. Damages proven must be economic harm.

Consent Defense to Intentional Torts

Plaintiff's consent to defendant's conduct is a defense, but the majority view is that one cannot consent to a criminal act.

Who cannot exercise the right of removal?

Plaintiff.

Additur

Playing hardball with D. After finding that a damage figure shocks the conscience, the court gives D a choice: pay a greater amount of damages or go through a new trial.

Remittur

Playing hardball with P. After finding that a damage figure shocks the conscience, the court gives P a choice: take a lesser amount or go through a new trial.

Intentional Misrepresentation (Elements)

Plf must prove: 1) misrepresentation by the def as to present/past fact 2) def knew the statement was false or had reckless disregard as to its falsity 3) intent to induce plf's reliance on the misrepresentation 4) causation (actual reliance on the misrepresentation 5) plf justifiably relied on def's representation 6) damages (loss as a result of the reliance)

Requirements of the Automobile Exception (Fourth Amendment)

Police have probable cause.

Limits of the Automobile Exception (Fourth Amendment)

Police may search the entire car. Police may open any package, luggage or other container which could reasonably contain the item they had probable cause to look for regardless of who owns the container.

Search Incident to Arrest + Automobiles

Police may search the interior of the auto incident to arrest ONLY IF: (1) the arrestee is unsecured and still may gain access to the interior of the vehicle; OR (2) the police reasonable believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Hot Pursuit Requirement (Fourth Amendment)

Police must be within 15 minutes of fleeing felon.

Police and the use of force:

Police officers are generally entitled to use whatever force is reasonably required, including deadly force, to apprehend or prevent the escape of a felon who poses a threat of serious bodily harm to the officers or others.

Searches of homes + Police Dogs

Police without probable cause may not use a drug sniffing dog directly outside the home.

Duty of Possessor of Land to Licensee

Possessor owes duty to protect from all known (man-made and natural) traps Possessor owes duty to protect entrants (warning or making safe) from conditions meeting two requirements: (1) Condition is concealed from trespasser (i.e., they would be unlikely to discover it themselves); (2) Condition must be one that possessor had "prior knowledge" of. Possessor must also use reasonable care in the exercise of "active operations" on the property. Possessor owes no duty to licensees to inspect for defects.

Duty of Possessor of Land to Invitee

Possessor owes duty to protect from all reasonably knowable traps (man-made and natural) on land. Possessor owes duty to protect entrants (warnings or making safe) from conditions meeting two requirements (1) Condition is concealed from trespasser (would be unlikely to be discovered); (2) Condition must be one possessor had "prior knowledge" of or could have discovered through reasonable inspection.

Duty of Possessor of Land to Discovered/Anticipated Trespasser

Possessor owes duty to protect from known, man-made death traps. Possessor owes duty to protect entrants (warning or making safe) from conditions meeting four requirements: (1) Condition is artificial (built by humans); (2) Condition must be highly dangerous (could cause death or serious injury); (3) Condition must be concealed from trespasser or be one that trespasser is unlikely to discover (no duty if open/obvious); (4) Condition must be one that possessor had "prior knowledge" of. Possessor must also use reasonable care in the exercise of "active operations" on the property.

How many states can an unincorporated association be a citizen of?

Potentially every state and every country.

Duration of FSA

Potentially infinite duration.

Privity of Estate exists b/t (LL-T)

Present landlord and present tenant.

President's Appointment Power

President alone appoints ambassadors, federal judges, and officers of the United States.

Presidential immunity

President has absolute immunity to civil suits for money damages for any actions while in office. Does not have immunity for actions that occurred prior to taking office.

Executive Privilege

President has executive privilege for presidential papers and conversations, but such privilege must yield to other government interests.

Pardon power

President has the power to pardon those accused or convicted of federal crime. The one exception is for impeachment.

What is the modern presumption regarding Fee Tail language?

Presumed to create a FSA unless the Bar Exam asks you to apply the common law rule.

Right to Abortion (Right to privacy) rules

Prior to viability, a state may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions (e.g., 24-hr waiting period, requirement that licensed physicians conduct, prohibition of partial birth abortions). After viability, a state may prohibit abortions unless necessary to protect woman's life or health. Government has no duty to subsidize abortions or provide abortions in public hospitals. Spousal consent and notification laws are unconstitutional. But, a state may require parental notice and/or consent for unmarried minors so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in minor's best interest or that she is mature enough to self-decide.

Privacy is a ( ), protected under ( ).

Privacy is a fundamental right, protected under substantive due process (strict scrutiny)

Where is there no First Amendment right of access for speech purposes?

Private property.

A tenant is liable to landlord for rent if there is either...

Privity of Estate or Privity of Contract.

What specific interactions with police are NOT custodial?

Probation interviews and routine traffic stops.

Manufacturing defects (definition)

Product emerges from manufacturing different from and more dangerous than the products that were made properly.

What is discussed at a Rule 26(f) conference?

Production of required initial disclosures, claims, defenses, settlement, and issue about preservation of discoverable information.

Partnerships with Non-Lawyers in providing legal services

Prohibited for any practice lawyer. Non-Lawyers cannot be partners, shareholders, officers, or control or direct your professional judgment.

Eighth Amendment

Prohibition against cruel and unusual punishment.

Fourth Amendment

Prohibition against unreasonable search and seizure.

Contract provides "rights hereunder are not assignable"--Prohibition or Invalidation?

Prohibition.

Suretyship

Promise to answer for the debts of another. "Answer for" is not merely a promise to pay someone else's debts, but rather a promise to pay another person's debts only if that person does not herself pay.

Covenants for Title (Definition)

Promises regarding title.

What is the public policy promoted by RAP?

Promote free transferability of land by preventing remote vesting.

Proof of emotional distress IS/IS NOT required?

Proof of emotional distress can be supported by the plf's testimony or testimony of others. Plf need not have sought medical or psychiatric care.

What kind of torts is necessity a defense to?

Property torts

How much force may be used in self-defense?

Proportional force.

Admissibility of evidence of victim's character in criminal case:

Prosecution cannot be first to offer character evidence to prove conduct. D opens the door through 2 ways (1) D offers evidence of victim's character: Prosecution may rebut. (2) In a homicide case, D offers evidence that victim attacked first: Prosecution may offer evidence of victim's character for peacefulness.

Admissibility of evidence of defendant's character in a criminal case:

Prosecution cannot be the first to offer such evidence to prove conduct. Evidence must always concern a pertinent character trait. Reputation and opinion evidence are admissible on direct examination by any party, but not specific instances evidence. On cross examination, reputation, opinion, and specific instances are all admissible. TWO EXCEPTIONS: (1) In cases of sexual assault/child molestation, prosecution can be the first to offer evidence that defendant committed other acts of sexual assault/molestation. (2) Where court has admitted evidence of victim's character offered by D, prosecution can be first to offer evidence that D has same character trait.

Exception to Prosecutor inability to testify on defendant's failure to testify:

Prosecutor can comment on defendant's failure to take the stand when the comment is in response to defense counsel's assertion that defendant was not allowed to explain his side of the story.

What is the prosecutorial duty to disclose exculpatory information?

Prosecutor's failure to disclose evidence, whether willful or inadvertent, violates the Due Process Clause and may be grounds for reversal of a conviction (2 requirements)

Dealing with the Press (Prosecutors) (PR)

Prosecutors and their aides must not make comments that have a substantial likelihood of heightening public condemnation of the accused.

Duty to produce evidence (Prosecutors)

Prosecutors have a special duty to timely disclose evidence favorable to the defense. This ethical duty exceeds the Constitutional obligation, requiring disclosure regardless of admissibility or impact on outcome.

Impaired future earnings potential is what type of damage?

Prospective damage.

Protections on Anonymous speech

Protected by first amendment.

Race-Notice Statute

Protects all subsequent Grantees who are BFPs for value who: (1) take without notice; and (2) are the first to record.

Privileges OR Immunities Clause of the Fourteenth Amendment

Protects the right to travel as a right of national citizenship. The right to travel includes the right of newly arrived citizens of a state to enjoy the same privileges and immunities as are enjoyed by other citizens of the state.

What are the lost profits for a lost volume seller?

Provable lost profits.

Supremacy Clause

Provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

If the Statute of Frauds applies, how does the plaintiff get her day in court?

Providing objective evidence of the contract to satisfy the court's concern about fraud. Where there is such objective evidence, the Statute of Frauds is "satisfied".

What areas are considered Limited Public Forums?

Public property that does NOT fit within the category of public forums

Types of Necessity (Torts)

Public: When the act is for the public good Private: When the act is solely to benefit a limited number of people. Under this form of necessity, the actor must pay for any injury he causes.

Bona Fide Purchaser

Purchaser for value who takes without notice.

Who determines whether a breach occurred (Negligence)?

Question for the trier of fact.

Ripeness

Question of whether a federal court may grant pre-enforcement review of a statute/regulation. Determined by (1) the hardship that will be suffered without pre-enforcement review and (2) the fitness of the issues and record for judicial review (does fed. ct. have all it needs to decide the issue or would it be better off waiting for prosecution?)

What are the 3 types of deeds?

Quitclaim, general, and special.

Sanctions against a party in no response to discovery request

RAMBO sanctions plus costs. No need to get an order compelling answer.

Charity-to-Charity Exception of RAP

RAP will not be applied to a gift/conveyance from one charity to another.

What are the most common General Intent crimes?

Rape and Battery.

What standard of review is used for laws affecting economic rights?

Rational basis review.

What happens if a sales contract is missing a price term?

Real Estate: Price and land description are required. Otherwise, an offer does not exist. UCC: No price requirement. An offer can still exist.

In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless:

Reasonable people could not have made that finding.

What do police officers need to stop a car?

Reasonable suspicion that the law has been violated UNLESS an exception exists

When must a motion for relief from order be filed on "mistake/excusable neglect" grounds?

Reasonable time (never more than 1 year)

When must a motion for relief from order be filed on "new evidence that could not have been discovered with due diligence for a new trial motion" grounds?

Reasonable time (never more than 1 year)

When must a motion for relief from order be filed on "Judgment is void" grounds?

Reasonable time (no maximum)

What is the baseline duty of care?

Reasonably Prudent Person acting under similar circumstances. This is an objective standard (no allowances for an individual's particular shortcomings).

Depraved Heart

Reckless indifference to an unjustifiably high risk to human life (a form of malice for common law murder/second degree murder)

What is the requisite intent for intentional infliction of emotional distress?

Recklessness (as to the effect of defendant's conduct) or Intentional.

Recording of deed + delivery

Recording a properly executed deed raises a presumption of delivery, even if the Grantee knows nothing about the deed.

How do recording acts alter the common law rule?

Recording acts alter the common law rule of "first in time, first in right" to protect a subsequent BFP.

Recording Statutes + Mortgages

Recording statutes generally protect subsequent mortgagees.

Personal Jurisdiction (Definition)

Refers to the ability of the court having jurisdiction to exercise power over a particular defendant or item of property.

What is the "offer +2"?

Refers to the requirements for an option offer to be irrevocable. Requires (1) a promise to keep the offer open and (2) promise is supported by consideration.

Rules re: Public Forums

Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met. Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication. Government regulation of public forums need not use the least restrictive alternative, but must be narrowly tailored. City officials cannot have discretion to set permit fees for public demonstrations.

Failure to reject goods after reasonable time + Acceptance

Rejection must be timely. Failure to reject after the buyer had reasonable time to reject is acceptance.

Relatedness analysis of personal jurisdiction

Relatedness between this contact and P's claim. Does P's claim arise from D's contact with forum?

Relevance v. Probative Value

Relevance either exists or it does not. Probative Value is a matter of degree.

Reciprocal Negative Servitudes/Mutual Rights of Enforcement

Relied on to allow each lot owner in a residential subdivision to enforce a restriction on use against every other lot owner in the subdivision.

Remainder

Remainder is a future interest in a third party Grantee that comes naturally and immediately on the termination of the preceding estate.

Loss of Consortium

Remedy granted to married person whose spouse has been injured. Allows recovery of 3 types of damages that otherwise could not be recovered: Loss of services, loss of society, and loss of intimacy.

Exclusionary Rule

Remedy whereby someone who has been the victim of illegal search or a coerced confession can have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution.

Typicality requirement (Class Action)

Rep's claims are typical of the class.

Limitation on Life Tenant's obligation to repair, pay taxes, and pay mortgage debt.

Repair obligation is limited to the amount of rents and profits from the land. If there are no rents and profits, repair obligation is limited to reasonable rental value of land IF the life tenant is using the land. If life tenant is receiving NO income from the property and is not otherwise using the property, then life tenant has no repair obligation.

Who is utilized in determining SMJ for a class action suit?

Representative's citizenship and amount in controversy for their own claim.

Who pays to provide Type 3 "Damages" class action notice?

Representative.

Rape shield statute rules (Criminal)

Reputation and Opinion evidence are inadmissible. Specific instances of alleged victim's conduct admissible only to prove (1) third party is source of semen or injury or (2) prior acts of consensual intercourse between defendant and alleged victim.

Rape shield statute rules (Civil)

Reputation, Opinion, and Specific Instance evidence is admissible if probative value substantially outweighs unfair prejudice and, in the case of reputation evidence, P put her reputation in issue.

In what form is ESI to be produced (Discovery)?

Requesting party specifies the form, other party cannot object.

Majority View of Overt Act requirement (Conspiracy)

Required.

What happens if the amount in controversy is $75,000 in determining diversity citizenship?

Requirement is not met.

When can acceptance of goods be revoked?

Requirements for revocation: (1) Non-conformity substantially impairs the value of the goods; and (2) Excusable ignorance of grounds for revocation or reasonable reliance on seller's assurance of satisfaction; and (3) Revocation within a reasonable time after delivery of non-conformity.

Bilateral Approach (Conspiracy)

Requires 2 guilty parties. Both parties must have intent to commit crime for Conspiracy to exist. Acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. This is the common law approach.

Wiretapping/Eavesdropping requirement

Requires a warrant (all instances).

Enforcing the BURDEN of a restrictive covenant

Requires both Vertical privity and Horizontal privity. Vertical: Successors must take the full durational estate held by their predecessor. Horizontal: Two parties must share some interest in the land independent of the covenant. THERE MUST BE A CONVEYANCE OF THE PROPERTY BETWEEN THE ORIGINAL PARTIES.

Enforcing the BENEFIT of a restrictive covenant

Requires only vertical privity: Holder of any succeeding possessory estate may enforce the benefit of the promise as a covenant at law.

Changed Conditions + Common Scheme of Negative Reciprocal Servitudes

Restrictive covenants on all lots in a subdivision can be voided if changed conditions have made the properties unusable for the specified use. This requires the ENTIRE subdivision to have changed so significantly that enforcement of the restriction would be inequitable. If ALL lots are affected, the restriction can be voided, but the entire subdivision must be affected.

Retention of goods as acceptance

Retention is implied acceptance. Occurs when buyer keeps goods without objection.

How does a grantee return a deed to the original grantor, if they don't want title to the land?

Returning the deed to the grantor has no effect. To effect a reconveyance, the grantee must execute and deliver a new deed.

What future interest in Grantor is not freely transferable inter vivos?

Right of Entry.

A joint tenancy carries a...

Right of Survivorship.

When can a seller reclaims goods from an insolvent buyer?

Right of an unpaid seller to get its goods back. Key facts are that (1) the buyer must have been insolvent at the time that it received the goods, and (2) the seller demands return of goods within 10 days of receipt (or "reasonable time rule" if there had been express representation of solvency by buyer), and (3) the buyer still has goods at time of demand.

What rights trigger "Undue Burden Test"

Right to abortion

Confrontation Clause (6th Amendment)

Right to confront witnesses. Not an absolute right.

Right to Contribution and Payment of Repairs

Right to contribution for all necessary repairs. However, monies expended for all unnecessary repairs follow the contribution/accounting rules for payments of improvements.

15th Amendment

Right to vote shall not be restricted because of race.

What is the modern exception to impermissible restraints on alienation?

Rights of first refusal are valid.

What is the majority rule regarding rights over lakes and rivers?

Riparian rights (not prior appropriation)

What rule governs the D's response to a complaint?

Rule 12

Sale of crops + Waste

Sale of harvestable crops does not constitute waste.

Estoppel by Deed Doctrine + Subsequent Sale to a BFP

Sale to a BFP will cut off the rights of an earlier Grantee and therefore will cut off that Grantee's right to rely on the Estoppel by Deed Doctrine.

Rules re: Designated Public Forums

Same rules apply as for public forums.

Exception to Imputed DQ

Screening: If colleague's previous government service/work for adverse party conflicts her out of specific work, you may still be allowed to take that work with safeguarded such as screening colleague with conflict behind an "ethical wall".

How does Congress authorize suits against states?

Sec. 5 of the 14th Amendment.

Security Interests

Security interest in real property is a device used to secure a loan on the property. Typically the loan is reflected in a promissory note given by the borrower and the security interest is reflected in a separate written instrument.

Under common law, what happens to a life estate pur autre vie if the possessor dies before the measuring life?

Seisin is vacant--so anybody takes until the measuring life dies.

Voluntary Intoxication Defense

Self-induced intoxication. Defense to Specific Intent crimes (and no others).

Once a land sale contract is signed, what respective rights to the seller/buyer hold, and what happens upon their death?

Seller - After signing, the seller is entitled to the proceeds of sale. Equity regards the seller as holding bare legal title in trust for the buyer as security for the debt owed. When a seller of land dies before the contract closes, the successors to the seller's real property must give up legal title at closing and are entitled to the seller's personal property, i.e., the proceeds. When the seller dies, the contract is NOT voidable by the seller's estate. It can be enforced against the takers of her real property when closing occurs. Buyer - Under the doctrine of equitable conversion, the buyer of land is considered to own (i.e., hold equitable title to) the real property once the contract is signed.

How does seller complete its delivery obligation in a shipment contract?

Seller completes it delivery obligation when (i) it gets the goods to a common carrier, and (ii) makes reasonable arrangements for delivery, and (iii) notifies the buyer. Here, the seller completes it delivery obligation before delivery is completed.

Death of the Buyer before close of Escrow

Seller will close with the sale with the Buyer's estate. Seller will deliver title to the property to Buyer's estate. Buyer's interest is in real property.

What ratifies a treaty?

Senate's vote.

If the other party violates Rule 11, how must you proceed?

Serve a motion for sanctions on the party, but not file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, THEN the motion can be filed.

Board Service (PR)

Service on the Board of Directors of a non-profit legal services organization is allowed. There is no bar to sitting on the Board of a corporate client, but it is discouraged, because it is likely to compromise both loyalty and confidentiality.

Supplemental pleadings (Definition)

Set forth things that happened after the pleading was filed.

Contract + Severance of Joint Tenancy

Severance occurs when contract of sale is signed because of doctrine of equitable conversion.

What is an "unreasonable interference" (Nuisance)?

Severity of the inflicted injury must outweigh the utility of D's conduct.

Indemnity

Shifting the entire loss b/t or among tortfeasors.

FOB followed by the city where the seller is or where goods are means it is what type of contract?

Shipment contract.

Conflicts b/t or among Clients: Representing multiple clients in same matter

Significant risks that service for one may become materially limited as a result of others' interest. These potential conflicts generally require disclosure and consent.

Termination of an Easement by Prescription

Similar to creation by prescription/adverse possession. Focus on holder of the servient estate. The owner of the servient estate must openly and notoriously stop the use of the easement and must keep it stopped for the period of time required by the applicable statute of limitations.

Requirements for introduction of character evidence to prove "identity"

Similarity and Uniqueness.

Slander Per Se

Slander that is particularly hurtful to reputation so treated like libel in terms of damages (no need to prove special damages). Includes defamatory statements that: (1) Adversely reflect on one's conduct in a business or profession; (2) One has a loathsome disease; (3) One is or was guilty of a crime involving moral turpitude (most common law crimes) (4) A woman is unchaste

What constitutes Rape?

Slightest penetration

Statute of Frauds + Real Covenants/Equitable Servitudes

SoF requires that these restrictive covenants be in writing and signed by the party charged (the servient estate) in order to be enforceable. NOTE: a buyer's acceptance and recording of a deed containing the covenant is the legal equivalent of a signature.

Exceptions to the "No Merger Rule"

Solicitation and Attempt

Inchoate Offenses and the "No Merger Rule"

Solicitation and Attempt are exceptions; Conspiracy is not.

What are the Inchoate Offenses?

Solicitation, Attempt, and Conspiracy

For a liquidated damage clause to be valid, what must exist?

Some reasonable forecast.

What is a "merchant" (Products Liability)?

Someone routinely dealings in goods of this type. Every entity in distribution chain is a merchant.

Rape shield statute (Definition)

Special rules, in criminal and civil cases involving rape or other sexual assault, limiting defense evidence of alleged victim's character when offered to prove consent.

For purposes of nuisance, an interference will not be characterized as substantial if it is merely the result of a plaintiff's ______ use of their property.

Specialized

Attempt requirements

Specific Intent; Overt Act.

Fairness factors in personal jurisdiction analysis are only assessed in what kinds of cases?

Specific personal jurisdiction.

Easement Scope: General Rule

Specific terms of the Easement control on questions of use. Use outside the scope of an easement will not terminate the easement, but you can sue for an injunction to stop the impermissible use.

If the Defendant pleads guilty, a judge must...

Specifically address D on the record about the following: (1) Nature of the charge; and (2) Maximum authority penalty and any mandatory minimum penalty; and (3) That D has a right to plead not guilty and to demand trial.

Slander

Spoken defamation.

Standing (Con Law)

Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication.

What is required for Art. 3 federal court review?

Standing, Ripeness, and Mootness.

Start of Performance + Acceptance + Unilateral Ks

Start of performance is not acceptance of unilateral K offers. Completion of performance is required.

Exception to remedy for denial of due process (Pre-trial identification)

State can show that it had an adequate independent source for that in-court identification.

Which courts can hear any case?

State courts (with a few exceptions)

When are suits against state officers not allowed?

State officers may not be sued if it is the state treasury that will be paying retroactive damages.

What test must contract interference meet?

State or local interference with private contracts must meet intermediate scrutiny, different from traditional intermediate scrutiny. State or local interference with government contract must meet strict scrutiny.

Where is the first place to look to see if the court has personal jurisdiction?

State's long arm statute.

Inter-government immunity

States may not tax or regulate federal government activity.

Satisfaction of the Statute of Frauds via Performance (Sale of Specially Manufactured Goods contracts)

Statute of Frauds satisfied as soon as the seller makes a "substantial beginning". Seller has done enough work that it is clear what she is working on is specially manufactured.

What areas are considered Public Forums?

Streets, sidewalks, parks, and designated public forums

Statutory Rape is a...

Strict Liability crime.

Mistake of fact is NEVER a defense to...

Strict Liability crimes.

What level of scrutiny is used for classifications based on national origin?

Strict Scrutiny

What level of scrutiny is used for race classifications?

Strict Scrutiny

What is the standard for determining whether an express condition has occurred?

Strict compliance is required for "satisfaction" of a condition.

What is the Specific Intent Crimes Mnemonic?

Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts.

When a mortgagor conveys mortgaged property, the grantee takes the land _____ to the mortgage.

Subject to the mortgage; means that the grantee is at risk of losing title to the property if the mortgagee institutes a foreclosure proceeding upon default.

Subtenant's Liability for Rent

Sublessor keeps the estate; estate is NOT transferred to Sublessee. Under general rule (LL can recover rent from anyone with whom he is in privity), sublessee will not be liable to LL on any lease covenant but sublessor continues to be liable.

Duties of Subordinate lawyers (PR)

Subordinates: You are subject to discipline if the conduct is a clear violation. If the conduct is a debatable problem, then only the supervisor is solely responsible. If a supervisor ratified an action or knew of wrongful conduct and failed to take action, he is in violation. Managing Partner: Must make reasonable efforts to ensure that the conduct of all firm employees or outsourced workers comports with the professional obligations of a lawyer, including non-lawyer assistance.

What constitutes an "Overt Act" (Attempt)?

Substantial Step in furtherance of the commission of the crime.

Nuisance

Substantial and unreasonable interference with someone's use and enjoyment of property.

What is the citizenship of decedents?

Such persons must sue or be sued through a representative. The representative's citizenship is irrelevant. Use the citizenship of the decedent.

What is the citizenship of incompetents?

Such persons must sue or be sued through a representative. The representative's citizenship is irrelevant. Use the citizenship of the incompetent.

What is the citizenship of minors?

Such persons must sue or be sued through a representative. The representative's citizenship is irrelevant. Use the citizenship of the minor.

Federal and State courts can't hear which claims?

Suits against state governments via the 11th Amendment (prohibiting suits against states in federal courts) and sovereign immunity (prohibiting suits against states in state courts or federal agencies).

What is "Process"?

Summons (formal court notice of suit and time to respond) and a copy of the complaint.

Lateral Support + General rule

Support from all sides. A landowner has the right to have her land supported by adjoining landowners. Neighbors are strictly liable if the land subsides OR if their negligence causes damages to structures on the land.

Subjacent Support

Support of the Surface from the bottom. Problems are involving rights of subjacent support arise where mineral rights have been legally severed from the surface rights. Later, the holder of the mineral rights removes the minerals from under the surface, causing the surface to subside or collapse.

What provides for Preemption?

Supremacy Clause of Art. 6, which provides that the Constitution and laws/treaties made pursuant to it, are the supreme law of the land.

Subjacent Support General Rule

Surface owners have the right to have their land supported from the bottom and strict liability will result if the land is not supported. This right extends to the land and to those improvements that were existing on the land as of the date that the mineral rights were severed form the fee simple.

What are the "4 unities"?

T-TIP (1) Time: interests must vest at the same time (2) Title: interests must be acquired via the same instrument (3) Interest: interests must be of the same type and duration (4) Possession: interests must have identical rights to possession/enjoyment of the whole

Surface water right rules

TWO competing approaches: (1) Natural Flow Approach: Requires landowner not to make any changes at all in the flow of the floodwater as it rushes across the surface of land. However, most modern courts allow a landowner to take reasonable measures to deal with surface waters. (2) Common Enemy Approach: Land owner can do anything he wants with floodwater.

Lawyer's duty re: client perjury (Criminal case)

Take remedial measures (3 steps) (1) Counsel client to testify truthfully or not take the stand, then if that fails, (2) You may try to withdraw from the case, then if that fails (3) ABA: Tell the Judge. The right to counsel and the duty of confidentiality do not shield perjury. CA: Allow defendant to testify in a narrative fashion, but do not further the deception. If client tells you that he lied? Take remedial measures, but your duties end with the proceedings.

Main Purpose Exception (Suretyship)

Takes suretyship agreements outside the Statute of Frauds. Exists f the main purpose of the obligation allegedly guaranteed was to benefit the guarantor.

Robbery

Taking of personal property of another from the other's presence by force or threat with intent to permanently deprive him of it.

Continuing Trespass (Larceny)

Taking of property without intention to permanently deprive owner of it, but then later deciding to do so. Can lead to guilt for larceny.

Trespass for purposes of Larceny

Taking without owner's permission.

Exception to Prohibition against Generalized Grievances

Taxpayers have standing to challenge government expenditures of money pursuant to federal (or state/local) statutes as violating the Establishment Clause. VERY STRICTLY CONSTRUED (Money and only money).

Before getting a preliminary injunction, to maintain the status quo until the hearing you may seek a:

Temporary Restraining Order.

What is the smallest estate at law?

Tenancy at Will

Termination of the Tenancy at Will

Tenancy at Will may be terminated by either party giving the other notice of termination and a reasonable time to vacate the leased premises. May also be terminated by operation of law: (1) Death of either party (2) Waste by Tenant (3) Assignment by Tenant (4) Lease by Landlord to third party.

Any estate measured by a fixed period of time is a ....

Tenancy at years.

What is the default co-tenancy?

Tenancy in cmmon

Tenancy at Will

Tenancy where either party can terminate at any time.

Life Estate + Taxes

Tenant in possession must pay ALL taxes on the property. Subject to same limitation as obligation to repair.

Liability of Successive Assignees for Payment of Rent

Tenant is liable to the landlord for rent if either privity of estate or contract exist.

Tenant's rights in a complete taking of leasehold property

Tenant is no longer obligated to pay rent; complete taking extinguishes lease. Tenant will share in condemnation award only to the extent that the fair rental value of the property exceeds the amount of rent due under the lease.

Holdover Tenant

Tenant who was on the property under a valid lease but the lease has now expired--and the tenant nonetheless remains on the property.

Tenant's rights in a partial condemnation

Tenant will get an amount equal to the rent that was to be paid over the remainder of the lease term for that portion of the property that was condemned. Tenant is still obligated to pay full rent.

When must personal property be removed if not classified as a fixture?

Tenant: Before tenant vacates at end of lease. Seller: Before closing--or the seller loses the chattel.

Termination of the Periodic Tenancy

Terminates by giving proper notice. Proper notice must satisfy two independent criteria: (1) Enough Time: must be given (equal to length of period of tenancy EXCEPT in case of year-to-year, which generally requires 6 month notice). (2) Effective Date: To be valid, the effective date specific in the notice must be at the end of the period of the tenancy. Parties may lengthen or shorten or otherwise modify these common law notice requirements by private agreements.

Effect of Conditional Acceptance on offers.

Terminates the offer. Common Law: Rejects and becomes a counteroffer that can be accepted by conduct. UCC: Rejects

Apparent Consent

That which a reasonable person would infer from custom and usage or plaintiff's conduct.

Embezzlement

The 1) fraudulent; 2) conversion 3) of property 4) of another 5) by a person in lawful possession of that property.

What burden of proof must the prosecution bear?

The Due Process Clause requires the prosecution to prove all elements of a crime beyond a reasonable doubt.

Who can be impeached?

The President, Vice President, federal judges, and officers of the United States can be impeached and removed.

Privileges AND Immunities Clause of Article IV

The Privileges and Immunities Clause of Article IV prohibits states from discriminating against nonresidents.

Thirteenth Amendment + Enabling Clause

The Thirteenth Amendment prohibits slavery. The Enabling Clause of the amendment has been held to confer on Congress the authority to proscribe almost any private racially discriminatory action that can be characterized as a badge or incident of slavery.

Adverse Possession and Life Tenants

The adverse possession clock does NOT start to run against the holder of a future interest until that interest becomes possessory.

Who can obligor effectively pay in an assignment case?

The assignee. However, if the obligor knows nothing of the assignment then payment to the assignor is effective.

Transfer of the Benefit of an Easement: Easement Appurtenant

The benefit is transferred automatically along with the dominant estate, whether or not the easement is mentioned in the deed of conveyance. All who subsequently succeed to title to the dominant estate become entitled to the benefit of the easement appurtenant. Easement appurtenant cannot be transferred separately from the dominant estate.

If something happens to land after a land sale contract is signed, who bears the risk of loss?

The buyer, because under the doctrine of equitable conversion, the buyer holds equitable title to the land once the contract is signed.

Joint Tenancy + Sale/Conveyance of Interest =

The buyer/grantee takes as a tenant in common with respect to remaining co-tenants, who remain joint tenants with the right of survivorship.

Representative Adequate (Class Action)

The class representative will fairly and adequately represent class.

Closing Definition

The closing is when the parties tender performance of the contract, i.e., exchange the purchase price and deed.

What occurs in an "ambiguity" situation if one party knows the term is open to at least two reasonable alternatives (contracts)?

The contract will exist under the terms as understood by the party without such knowledge.

How does a judicial partition of a joint tenancy or tenancy in common take place?

The court will either 1) divide the tract into parcels (partition in kind) or 2) sell the property and divide the proceeds among the tenants in accordance with their ownership interests (partition by sale). Courts prefer to perform a partition in kind but will do a partition by sale where the land is not easily divisible.

How does the court rule on summary judgment?

The court will view the evidence in the light most favorable to the non-moving party.

Merchant to Merchant delay in responding exception (UCC Statute of Frauds)

The defendant needn't sign the writing for the Statute of Frauds to be met if there is a delay or failure to respond to a writing on defendant's part.

What are the default rules dictating risk of loss in a sale of goods?

The determining factor is whether the seller is a merchant. Risk of loss shifts from a merchant-seller to the buyer on the buyer's "receipt" of the goods; risk of loss shifts from a non-merchant seller when he or she "tenders" the goods.

On discretionary matters, the court of appeals will affirm unless:

The district court abused its discretion.

If D may remove, where does the case get removed to?

The federal district "embracing" the state court where the case was filed.

Amount in controversy requirement + Final judgment

The final judgment is irrelevant to determining the amount in controversy requirement. However, a P who wins less than $75,000 may have to D's litigation costs (not including attorney's fees).

When must you assert your Fifth Amendment privilege against self-incrimination?

The first time the question is asked; otherwise, you will have waived the privilege for all subsequent criminal prosecutions. Privilege must be claimed in civil proceedings to prevent privilege from being waived for later criminal prosecution.

In a foreclosure sale, who gets paid?

The forecloser and then the junior interest if there is money left.

How does a seller complete its delivery obligation in a destination contract?

The goods arrive at the destination.

Rules re: Limited Public Forums

The government can regulate speech in limited public forums so long as the regulation is reasonable and viewpoint neutral.

Rules re: Non-public forums

The government can regulate speech non-public forums so long as the regulation is reasonable and viewpoint neutral.

Deprivation of Due Process + Emergency.

The government is liable under due process only if its conduct "shock the conscience".

Takings + Public Use

The government may only exercise its taking power for a public use. Any use will be deemed "public" if it is rationally related to a legitimate public purpose.

First Amendment: Incitement of illegal activity

The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.

Due Process + Failure to protect

The government's failure to protect people from privately inflicted harms does not deny due process. Only if the government physically created peril or in government custody does the duty.

Unity of Title

The grant to all joint tenants must be by the same instrument.

What intent is required for attempt?

The intent to perform an act and obtain a result that, if achieved, would constitute a crime. Note that this is a SPECIFIC INTENT crime, regardless of the intent required for the completed offense.

What is a future interest?

The interest exists now, but possession will NOT take place--if it takes place at all--until some time in the future.

How does one deliver a deed?

The legal test for delivery is solely a question of whether the Grantor had the necessary intent to pass title. No physical transfer of deed is required. Parol evidence may be used. Record Presumption: Recording a properly executed deed raises a presumption of delivery, even if the Grantee knows nothing about the deed. Once delivery occurs, title passes. Returning the deed to the Grantor has no effect.

How serious much the interference be in a conversion case?

The longer the withholding period and the extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels.

Arson

The malicious burning of the dwelling of another.

What state of mind is required to claim adverse possession?

The occupier's state of mind is irrelevant to adverse possession, which means that it does not matter whether the occupier believes she is on her own land, knows she is trespassing on someone else's land, or has no idea who owns the land.

May parol evidence be used to explain ambiguities?

The parol evidence rule does not prevent a court from considering evidence of earlier agreements to resolve ambiguities in the written contract.

Parol Evidence Rule + Ambiguity

The parol evidence rule does not prevent a court from considering evidence of earlier agreements to resolve ambiguities in the written contract.

May parol evidence be used in conjunction with defenses?

The parol evidence rule does not prevent a court from considering evidence of earlier words of the parties for the limited purpose of determining whether there is a defense to the enforcement of the agreement (e.g., misrepresentation, fraud, or duress).

Parol Evidence Rule + Defenses

The parol evidence rule does not prevent a court from considering evidence of earlier words of the parties for the limited purpose of determining whether there is a defense to the enforcement of the agreement (e.g., misrepresentation, fraud, or duress).

May parol evidence be used to "add" to the written deal?

The parol evidence rule prevents a court from considering evidence of earlier agreements as a source of consistent, additional terms unless the court finds: (1) that the written agreement was only a partial integration or (2) that the additional terms would ordinarily be in a separate agreement.

Parol Evidence + Additions to written deal

The parol evidence rule prevents a court from considering evidence of earlier agreements as a source of consistent, additional terms unless the court finds: (1) that the written agreement was only a partial integration or (2) that the additional terms would ordinarily be in a separate agreement.

What if a contract's "time is of the essence" clause is violated.

The party who failed to perform on time is in total breach and therefore cannot enforce the contract.

Who is bound in a contract involving someone lacking capacity?

The party with consent. The contract is voidable by the party without consent.

What areas can be searched under a search incident to arrest?

The person and the areas in the person's grabbable space/wingspan.

What is the "plaintiff's person" (Intentional tort of Battery)?

The person themselves and anything person is holding of that is connected to the person.

"Return" of service

The person who serves process must file a report with the court detailing how service was made. If the server was a civilian, the report is by affidavit.

Last Clear Chance Doctrine

The person with the last clear chance to avoid the harm will be found liable; it is a defense used by a plaintiff to recover despite her own contributory negligence (most comparative negligence jurisdictions do not recognize this doctrine)

What kind of damages must be pled for the invasion of privacy torts?

The plaintiff need not plead any special damages, such as pecuniary harm. Rather, damages for emotional distress are sufficient.

What is the effect of def's willful and wanton conduct in a jurisdiction that has adopted comparative negligence?

The plf's comparative negligence will still be taken into account, in most jurisdictions.

What dictates the period of periodic tenancy is there is no express agreement?

The rent payment.

Short Term Lease of Furnished Dwelling exception (Landlord Tort Liability)

The rental of a furnished dwelling for a short term makes the Landlord liable for defects, even if the landlord neither knows nor has reason to know of such defects. Short term is for 3 months or less.

How much movement is required for larceny?

The slightest movement of property is enough.

Unilateral Contract and Offer Revocabiltiy

The start of performance pursuant to an offer to enter into a unilateral K makes that offer irrevocable for a reasonable time to complete performance. Mere preparation is not enough to make an offer irrevocable.

In a diversity case, when is an action commenced for statute of limitations purposes?

The state rule for determining when the action is commenced applies.

What is the "Nerve Center" Approach?

The test used to determine where a corporation's PPB is (where do its managers direct, coordinate, and control corporate activities?).

Escrow

The time period between the signing of the contract of sale and until the deed is transferred. During escrow, contract law principals control.

Larceny

The trespassory taking and carrying away of property of another with intent to permanently deprive the person of his interest in the property

What dictates the damages plaintiff must prove in defamation?

The type of defamation involved. In some slander cases, plaintiff must prove that she suffered special damages (suffered some pecuniary loss).

Particularity

The warrant must state with particularity that place to be searched and the things to be seized.

What happens if a junior interest is not made party to a foreclosure proceeding?

Their interest is not eliminated.

Easements for View and Sunlight

There are no implied easements for view or sunlight.

What can not exist for imposition of death penalty?

There can be no automatic category.

Adverse Possession Against Concurrent Owners

There is NO adverse possession against a co-tenant unless the co-tenant in possession excludes the other co-tenants from possession and the statutory period runs. The exclusion starts the clock running for purposes of adverse possession.

Creditor's Sale of interest in Joint Tenancy

There is NO severance until the judicial sale actually takes place.

Duty of Possessor of Land to Undiscovered Trespasser

There is no duty of care b/c the trespasser is an unforeseeable victim.

Right to education + Level of scrutiny.

There is no fundamental right to education. Only Rational Basis Review

Tacking of disabilities (Adverse Possession)

There is no tacking of disabilities! Focus only on the moment adverse possession began.

Commonality requirement (Class Action)

There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.

Ineffective assistance of counsel requirements:

There must be (1) deficient performance by counsel, (2) and, but for such deficiency, (2) there is a reasonable probability that the result of the proceeding would have been different.

Ambiguity + Contract enforceability

There will be no contract if (1) parties use a material term that is open to at least two reasonable interpretations, and (2) each party attaches different meaning to the term, and (3) neither party knows or has reason to know the term is open to at least two reasonable alternatives.

Officers may search individuals found on the premises of a place where they have a valid search warrant to search if...

They gain probable cause to arrest the person.

What is the importance of specific intent crimes?

They qualify for additional defenses not available for other types of crime.

What is relevance in discovery?

Things that are "reasonably calculated to lead to the discovery of admissible evidence." Broader than admissible.

Due-on-Sale Caluse

This clause says that if the Mortgagor transfer the property without the Mortgagee's consent, the full amount of the loan becomes immediately due and payable. Enforceable at law.

Alternative Causes Approach for Causation in Fact

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to Ds and each must show that his negligence is not the actual cause.

What death penalty statutes are unconstitutional?

Those that do not give Defendant a chance to present mitigating facts and circumstances.

Who is incapable of consent?

Those without capacity.

First Amendment: Obscenity and sexually-oriented speech

Three part test for obscenity: (1) Material must appeal to the prurient interest (based on a community standard; refers to "shameful or morbid" interest in sex). (2) Material must be patently offensive under the law prohibiting obscenity (law prohibiting obscenity must describe what fits into law). (3) Taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value.

Strict Liability for Abnormally Dangerous Activities + Requirements

Three requirements: (1) The activity must create a foreseeable risk of serious harm even when reasonable care if exercised by all actors; and (2) the activity is not a matter of common usage in the community. (3) Liability attaches ONLY if the harm results from the kind of danger to be anticipated from the activity, i.e., the injury must flow from the normally dangerous propensity of the activity.

Mortgages: Title Theory, Intermediate Theory, & Lien Theory (Definitions & Implications)

Title Theory: Followed in a MINORITY of states—legal title is in the mortgagee until the mortgage has been satisfied or foreclosed. Thus, the mortgagee is entitled to possession upon demand at any time, which means the mortgagee can take possession as soon as the mortgagor defaults. Intermediate Theory: Legal title transfers from the mortgagor to the mortgagee on default (only a few states). Lien Theory: Followed in a MAJORITY of the states—the mortgagee is deemed to hold a security interest in the land and the mortgagor is considered the owner until foreclosure. Thus, the mortgagee may not take possession of the land before foreclosure.

"Legal Blinders" in Title Search

Title searcher examines only the actions taken by the Grantor during the period of record ownership by that Grantor. Therefore, title searcher does not look for anything that a Grantor may have done before or after obtaining/passing title.

Deed of Release (Easements)

To be a valid release, the release must be in writing (satisfy the Statute of Frauds) and must comply with all of the deed formalities.

Conduct-Based Regulations + Limited Public Forum (First Amendment Rights)

To be valid, a time, place, and manner regulation of a limited public forum must be 1) viewpoint neutral and 2) rationally related to a legitimate government purpose (rational basis review). The regulation need not be content neutral.

Conduct-Based Regulations + Public Forum (First Amendment Rights)

To be valid, government regulations on speech and assembly in public forums must be 1) content neutral 2) narrowly tailored to serve an important government interest, and 3) must leave open alternative channels of communication.

What is the purpose of Rule 11 sanctions?

To deter; NOT to punish.

Original Aggressor + Self-Defense

To get back the defense of self-defense, the original aggressor must: (1) withdraw, and (2) communicate that withdrawal. OR If the victim of initial aggression suddenly escalates a minor fight into one involving deadly force and does not give aggressor opportunity to withdraw, the original aggressor may use force in his own defense.

When can the mailbox rule not be used?

To meet an option deadline.

Easement created by previous use of common owner

To obtain there must be previous use by a common owner and this previous use must satisfy 3 requirements: (i) continuous, (ii) apparent/open and obvious; (iii) reasonably necessary.

Character evidence rules apply only if the evidence is used for what purpose?

To prove conduct.

Numerosity requirement (Class Action)

Too many class members for practicable joinder. No magic member.

Test for knowing/voluntary (Miranda waiver)

Totality of circumstances.

Assignment (Landlord-Tenant)

Transfer of a tenant's entire balance of the leasehold. T does not retain a reversion.

Sublease (Landlord-Tenant)

Transfer of only part of tenant's balance of the leasehold. T retains a reversion.

Assignment (Definition in contract)

Transfer of rights under a contract. Involves two separate steps: (1) contract between only two parties, and (2) one of the parties later transfers rights under that contract to a third party.

Treatment of the Benefit of an Easement: Easement in Gross

Transferable is the easement is commercial. Not transferable id the easement is personal.

Transferability of Possibility of Reverter

Transferable via inter vivos conveyance, devisable, and descendible.

Internet and the Commerce Clause

Transmission of information over the internet can be regulated under the Commerce Clause.

What can officers be impeached for?

Treason, bribery, or for high crimes and misdemeanors.

Duty owed to child trespassers

Treated more generously. Possessor owes duty of reasonable person to protect children from dangerous, artificial conditions. The more likely it is a child will trespass, the safer property must be made (Attractive Nuisance Doctrine). However, do not need to show that the child was in fact attracted onto the property by the condition.

Legal power of treaties

Treaties prevail over conflicting state law. If a treat conflicts with a federal statute, the one adopted last in time controls. It is always inferior to the Constitution.

What are the intentional torts to property?

Trespass to Land, Trespass to Chattels, Conversion

Trustee and duties

Trustee holds legal property to real property. Trustee must act in accordance with the Settlor's written instructions. Trustee is subject to strict fiduciary duty. If trustee dies, court can appoint a substitute.

Trusts and RAP

Trusts are subject to RAP.

When is an item of personal property treated as a fixture?

Turns on intent (Did the installing party intend the item to remain with real property?). Can occur through express intent (such as an agreement b/t LL and tenant— agreement terms control) or implicit intent. Four factors are relevant in determining: (1) Degree of attachment; (2) General custom (type of thing normally taken when possessor leaves?); (3) Degree of harm to premises on removal (courts favor tenants; requires substantial damage); (4) Trade Fixtures

How many places can a corporation be a citizen for determining diversity?

Two (Incorporation and PPB).

What are the requirements for the doctrine of past performance?

Two requirements must be met: (1) Oral contract must be certain and clear; and (2) the acts of partial performance must clearly prove up the existence of contract.

Termination of an Easement by Estoppel

Two requirements: (1) A representation of relinquishment of the easement by the holder of the dominant estate (e.g., oral agreement); (2) The holder of the servient estate must make a change in his/her position in reliance on that representation.

What type of class action requires notice?

Type 3 "Damages" Class actions.

What types of class actions provide no right to opt out?

Types 1 (Prejudice) and 2 (Injunction).

Anticipatory Repudiation (Definition)

Unambiguous statement or conduct (1) that the repudiating party will not perform (2) made prior to the time that performance was due.

What type of law is forbidden? (PR)

Unauthorized or unlicensed practice of law. Practice while suspended or not admitted is a violation unless allowed by law, a local court order, or limited exceptions.

Appropriation of P's Picture or Name

Unauthorized use of P's picture or name for D's commercial advantage. Liability generally limited to ads/promotion of products/services.

Notice Statute (Property)

Under a notice statute, a later purchaser of land will prevail over an earlier grantee if she takes without notice of the earlier grant.

Pure Race Statute (Property)

Under a race statute, notice is irrelevant. The first party to record, regardless of the date of her conveyance, wins.

Race-Notice Statute

Under a race-notice statute, a later purchaser will prevail over an earlier grantee only if she takes without notice of the earlier grant and records before he does.

Infancy Defense

Under age 7: No criminal liability. Under age 14: Rebuttable presumption of no criminal liability.

Mirror Image rule

Under common law, a response to an offer that adds new terms is treated like a counteroffer rather than an acceptance.

What is joint and several liability?

Under joint and several liability, where two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is liable to the plaintiff for the entire damage incurred.

Substantial Factor/Joint Causes v. Alternative Cause

Under joint causes approach, both parties caused the harm. Under the alternative causes approach, although both parties acted negligently, only one caused the harm.

Seasonable expression of acceptance (Additional terms under the UCC)

Under the UCC, a response to an offer that adds additional or different terms, but does not make the new terms a condition of acceptance, is generally treated as acceptance. The additional terms will be part of the agreement if both parties are merchants, the additional term is not "material" or objected to by the original offeror.

Estoppel by Deed Doctrine (Definition)

Under this doctrine, courts say that the Grantor gave an implied covenant that title will be conveyed to the Grantee. Therefore, that Grantee can sue to compel transfer of title from the Grantor.

Modern Trend/MPC Approach for Intent (Conspiracy)

Unilateral Approach

Battery (Criminal)

Unlawful application of force to the person resulting in either bodily injury or offensive touching.

False Imprisonment Definition

Unlawful confinement of a person w/o his valid consent.

Payment for witnesses (PR)

Unless local law prohibits it, you may pay basic expenses of a witness and reasonable fees for expert witnesses, as long as payment is not contingent on the content of the testimony.

President's removal power

Unless removal is limited by statute, the President may fire any executive branch office.

Value requirement for BFP

Unless there is an explicit claim of fraud, any consideration that is out of pocket is enough to be considered value.

Charitable Trusts

Unlike express private trusts, charitable trusts do not have named individuals as beneficiaries. Instead, the beneficiaries are either established charities or large groups of persons. Subject to Charity-to-Charity exception to RAP.

Ordinarily, double billing is considered ( ), but allowed if...

Unreasonable and dishonest. But, in CA it is allowed if: (i) fee charged to each is "not unconscionable"; (ii) the attorney clearly disclosed the billing practice at the outset of the relationship; and (iii) obtained clients' consent.

Exceptions to the eavesdropping rule

Unreliable ear and Uninvited ear.

Junior Interests + Foreclosure

Upon a foreclosure sale, junior interests (that were given notice and a chance to participate) are extinguished, meaning a buyer does not take subject to the interests. However, the original debtor is still liable for the debt.

How do you determine the citizenship of a natural person who is a U.S. citizen?

Use the U.S. state of her domicile.

Purposeful Availment

Used to assess personal jurisdiction: Has D reached out to the forum?

Res Ipsa Loquitur + Elements

Used to establish breach when P cannot prove what D did wrong. P must show that: (1) Accident causing injury is a type that would not normally occur unless someone was negligent, and (2) The negligence is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in D's position). This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of D.

Any attempt to put a direct restraint on the alienation is....

VOID, which means you ignore the restriction.

Entrapment defense

Valid if (1) criminal design originated with law enforcement officers and (2) the defendant must not have been predisposed to commit the crime.

Vertical Privity (Definition)

Vertical privity refers to the relationship between an original party to a real covenant and her successor in interest. For the burden of a covenant to run, this element is satisfied if the successor holds the entire durational interest held by the covenantor at the time she made the covenant. Vertical privity for the running of the benefit is satisfied when the successor in interest holds any possessory estate, even a lesser estate.

Presence requirement (Robbery)

Very broad (can cover entire house if tied up in barn).

When is a taking for "public use"?

Very broad; so long as government acts under the reasonable belief that the taking will benefit the property, the taking is for public use.

Limitations on delegations

Very limited. Delegations are permitted unless either (1) contract prohibits delegation or assignments or (2) a "personal services contract" that calls for VERY SPECIAL skills.

How are easements by prescription created?

Very much like title by adverse possession. Three requirements: (i) use must be adverse to the true owner (no right to use; any grant of permission destroys hostility required); (ii) use must be continuous and uninterrupted (seasonal maybe ok) and must last for specified statutory periods (20 years); (iii) Use is open and notorious OR made with the owner's knowledge Exclusivity is NOT required

What are the two types of remainders?

Vested and contingent

Vested Remainder Subject to Open/Vested remainder subject to partial divestment.

Vested remainder to a class which remains open to allow for future persons who qualify as class members by satisfying the class description.

Complete diversity rule

Violated if any P is a citizen of the same state as any D.

What kind of act is required by defendant (Torts)?

Volitional movement.

An Act must be...

Voluntary

What is the functional difference b/t Voluntary and Involuntary Intoxication?

Voluntary Intoxication is a defense only to specific intent crimes; Involuntary Intoxication is a defense to all crimes.

Voluntary Waste

Voluntary waste is any affirmative action beyond the right of maintenance that causes harm to the premises. Any change of use is voluntary waste for which the life tenant may be liable to holder of future interest.

Waiver of formal service of process + waiver of defenses

Waiving of formal service of process does not waive any affirmative defenses.

What is the limit P can receive in a default judgment?

What P originally pleaded.

Initial disclosures (Definition)

What must be disclosed within 14 days of the Rule 26(f) conference.

Determining the Amount in controversy requirement for diversity citizenship:

Whatever the P claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000.

When do two crimes not constitute the same offense?

When EACH crime requires proof of an additional element that the other does not. Blockburger Test.

Waiving 6th Amendment Right to Counsel

When a defendant has not specifically requested counsel and has merely been given appointed counsel (e.g., at a preliminary hearing), the police can come back and ask defendant to waive his 6th Amendment right to counsel and talk to them about the crime for which he was charged.

Why would a court force a non-party issue into the case?

When a non-party is necessary.

"Non-mutual" collateral estoppel

When a party not involved in Case 1 attempts to utilize the ruling on an issue in Case 2.

Self-Defense (Torts)

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.

Design defects (definition)

When all products of a line are the same, but have dangerous propensities.

When does the implied warranty of merchantability exist?

When any person buys any goods from any merchant. Here, a merchant is an individual that deals in goods of that kind.

When does the implied warranty of fitness exist?

When buyer has a particular purpose in buying good, is relying on seller to select suitable goods and the seller has reason to know of that purpose and reliance.

Where can the court not balance probative value for relevant evidence?

When dealing with impeachment of a witness by conviction for crime involving a false statement, provided that crime is not more than 10 years old. (If it is more than 10 years old, it is inadmissible unless probative value outweighs unfair prejudice).

In what situations does Caveat Emptor apply?

When dealing with property defects for all non-residential property (implied warranty of fitness instead controls).

Where is the distinction between a partial integration and a complete integration relevant?

When dealing with the use of parol evidence to "add" to the written deal.

Intentional Infliction of Emotional Distress + Bystanders

When defendant intentionally causes physical harm to a third person and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or (1) she was present when the injury occurred; (2) she is a close relative of the injured person; and (3) the defendant knew of (1) and (2).

Substantive Due Proces (Definition)

When government does not have an adequate justification for deprivation of person's life, liberty, or property.

Equal Protection (Definition)

When government treats groups of persons and their life, liberty, or property differently.

When will the shipment of "wrong" goods be considered a counteroffer and NOT acceptance + breach?

When it falls within the accommodation exception: Seller has provided an acknowledgement of the "wrong" shipment.

When is a prior consistent statement by a witness admissible?

When it if for all purposes if made before a bribe or rehabilitates witness credibility when attacked on another ground. Otherwise, it is inadmissible for any purpose.

When is a promise not consideration?

When it is an illusory promise.

When will parol evidence never be allowed?

When it is being introduced to change or contradict the terms of an agreement.

When is a service contract not within the Statute of Frauds?

When it is capable of being performed within a year from the time of the contract, such as tasks. Also, there is an exception for lifetime services, because a person may die within a year.

When are numerical "set-asides" constitutional?

When it is demonstrated that there is clear proof of past discrimination.

When is a service contract within the Statute of Frauds?

When it is not capable of being performed within a year from the time of the contract.

When may the government give assistance to parochial schools?

When it is not used for religious instruction.

Based on quantity of performance, when is a breach material?

When less than 50% of the performance has occurred. EXCEPTION: Divisible contracts.

When is acceptance generally effective via mail?

When mailed.

What does intent mean for purposes of an intentional tort?

When one acts purposely or when one knows with substantial certainty that their conduct is likely to cause a certain result.

When can a defendant remove to federal court?

When that action could have originally been brought by the P in federal court (SMJ exists).

When does the statute of limitations begin running on contract warranties of quality?

When the "tender of delivery is made," not when buyer learns the product is defective.

Duty b/t Bailor & Bailee for Gratutious Bailment

When the bailment is for the sole benefit of the bailee (i.e., a gratuitous bailment), the bailor has a duty to inform the bailee of known dangerous defects, but there is no duty with regard to unknown defects.

When do we test for diversity in determining subject matter jurisdiction?

When the case is filed.

When the supplement jurisdiction test always met?

When the claim you want to get into federal court arises from the same transaction or occurrence as the underlying case.

When may Ds be joined together in an action?

When the claims: (1) Arise from the same T/O (2) Raise at least 1 common question.

In a federal question case, when is an action commenced for statute of limitation purposes?

When the complaint is filed in court.

When is written proof of contract modification required?

When the deal with the alleged change would be within the Statute of Frauds.

When does a seller complete its delivery obligation?

When the goods arrive at the destination.

When does Strict Liability for Abnormally Dangerous Activities NOT apply (assuming both elements met)?

When the injury is caused by something other than the dangerous aspect of the activity.

When is a suretyship agreement not within the Statute of Frauds?

When the main purpose of the obligation allegedly guaranteed was to benefit the guarantor.

When is acceptance of an offer not effective mailed?

When the offer is for an option deadline or where rejection is mailed first.

Where does a counteroffer not terminate an offer?

When the offer is for an option.

When is an offer for a unilateral contract irrevocable?

When the offeree has begun performance (not mere preparation) pursuant to such an offer.

When will a class action invoke diversity jurisdiction?

When the representative is diverse from all Ds and the representative's claim exceeds $75,000.

When will illegality be a valid reason for not enforcing a contract?

When the subject matter (not the purpose) of the agreement is illegal. Illegal purpose MAY make a contract unenforceable if the plaintiff had reason to know of defendant's illegal purpose.

When can a contract for a third-party's benefit be cancelled or modified without the third party's consent?

When the third party (1) does not know of the contract, (2) hasn't relied on or assented as requested, or (3) the contract otherwise provides for cancellation or modification.

When does a third-party beneficiary's rights vest?

When the third party (1) knows of and (2) has relied on or assented as requested.

When can a contract for a third-party's benefit not be cancelled or modified without the third party's consent?

When the third party knows of and has relief on or assented as requested, unless the contract otherwise provides.

When may Ps join in an action?

When their claims: (1) Arise from the same T/O (2) Raise at least 1 common question.

When does the express warranty of quality exist?

When there are words that promise, describe or state facts.

When is a breach material?

When there has not been substantial performance.

Contigent remainder

When there is a condition that grantee must satisfy before his interest in Blackacre will become possessory

When must the executive privilege yield to "other governmental interests"?

When there is a need for evidence in a criminal trial of the president.

When are leases considered within the Statute of Frauds?

When they are for periods over a year.

When is a means of escape not reasonably discoverable by a plaintiff facing potential false imprisonment?

When they are harmful, humiliating, dangerous, or disgusting.

When do non-rent lease covenants run with the land?

When they touch and concern the land.

When does Solicitation end?

When you ask someone to commit a crime.

What is the exception to "offensive" contact's objective/reasonable standard (Intentional tort of Battery)?

When you make your sensitivity known.

Right of Entry (Creation)

Whenever Grantor conveys a fee simple on condition subsequent, Grantor keeps a right of entry, which means that grantor can retain possession of the property upon exercising her right of entry.

Mortgagor's Transfer of the Property

Whenever the Grantor transfer title to the property, the Grantee automatically takes the property subject to the mortgage. The Grantee will NOT be personally liable on the mortgage unless the Grantee specifically assumes the mortgage. However, Grantee can still lose the property. BUT, any modification of the obligation by the mortgagee and the grantee will release the original mortgagor of all liability.

Possibility of Reverter (Creation)

Whenever the grantor conveys an FSD, the Grantor automatically retains a possibility of reverter.

Unity of Ownership: Doctrine of Merger (Easements)

Whenever title to the dominant and servient estates come together in the same owner, easement is terminated so long as the duration of the servient estate is equal to or longer than the duration of the dominant estate.

Third Party Consent for Consent Search (Fourth Amendment)

Where 2+ people have equal right to use property, either can consent. However, if both are present and they disagree about consent, then the one who does not consent controls. If co-occupant who does not consent is removed from premises for reason unrelated to refusal, the police may search upon consent of other occupant.

General Personal Jurisdiction

Where D can be sued in forum for a claim that arose anywhere in the world.

Breach of Duty (Negligence)

Where D's conduct falls short of that level required by the applicable standard of care owed to the P.

Removal + Amount in controversy requirements

Where P claims in the complaint does not limit what she can recover, D can remove by alleging that the amount in fact exceeds $75,000. Federal court will hold a hearing and burden is on D to show by preponderance of the evidence that the amount does exceed $75,000.

Intervention

Where a nonparty brings themselves into the case. Nonparty chooses to come in either as a P (to assert a claim) or as a D (to defend a claim).

Purchase Money Mortgage (Definition)

Where a seller of property receives a mortgage as part of the purchase price, a purchase money mortgage results. Purchase money mortgages may also arise when a third party lends money to the buyer for the purchase of property and takes a mortgage on the property in return. In general, the seller's purchase money mortgage will take priority over the third-party purchase money mortgage.

Specific Personal Jurisdiction

Where claim arises from D's contact within the forum.

Where will there be no implied warranties (contracts)?

Where defects are those which would be obvious on examination.

Where is a D always "at home" (Creating general personal jurisdiction)?

Where domiciled.

Where is the corporation's PPB?

Where it's managers direct, coordinate, and control corporate activities. The "Nerve Center" Approach; usually the corporate headquarters.

Public of Facts Placing P in False Light

Where one attributes to P views he does not hold or actions he does not take. Must be highly offensive to a reasonable person under the circumstances. Publicity required.

Substantial Factor Test of Causation in Fact

Where several causes bring about the injury, and any one alone would have been sufficient to cause the injury, D's conduct is the cause in fact if it was a substantial factor in causing the injury. If both breaches are substantial factors, then actors are jointly and severally liable.

Where does a human reside for Venue purposes?

Where that person is domiciled.

Class Gift + Subject to Open

Where the remainder interest is conveyed to a group of unnamed persons whose members are not yet fully known, the class remains open to allow for future persons who qualify as class members by satisfying the class description.

Priorities on Payment of Multiple Mortgages

Where there are multiple mortgages on a single property, priority is allocated based on the common law rule of--first in time, first in right, unless that order is changed by the terms of the recording statute.

Damages for breach of Covenant of Warranty

Where there is a breach of warranty, P's damages will be limited to the amount of purchase price received by the warrantor plus incidental damages

When does buyer have the right to reject an installment?

Where there is a substantial impairment in that installment that can't be cured.

Fairness factors in personal jurisdiction analysis are not assessed when?

Where there is general personal jurisdiction.

Co-Tenants and Accountability

Whether a co-tenant in possession has to share profits that this co-tenant has received from the land. One co-tenant does not have to account to another co-tenant for his share of the profits, subject to FOUR exceptions

What determines the delivery obligations of a seller of goods?

Whether the contract in question is a shipment contract or a destination contract.

What determines whether part payment can be consideration for the release of debt?

Whether the debt is due and undisputed.

What dictates how satisfied the Statute of Frauds is in a sale of goods contract?

Whether the goods are ordinary goods or specially manufactured goods.

Defense of Others: Majority v. Minority Rules

Whether there needs to be a special relationship between the parties (Majority: No).

What is the basic idea of Venue?

Which exact federal court should we be in?

Race Statute

Whoever records first keeps the property. Subsequent purchaser needn't be a BFP.

If you have a fee dispute, you must (with regards to client account):

Withhold the disputed portion in the client trust account until resolution of the claim and distribute the rest.

To avoid default, when must a D respond to a complaint

Within 21 days of service of process. Unless D waived service, then D gets 60 days from P's mailing of the waiver form.

When do you move for a new trial?

Within 28 days after judgment.

When must you respond to a request to produce?

Within 30 days of service, stating that the material will be produced or asserting obligations.

What is insufficient on its own to constitute assault (torts)?

Words alone are not sufficient, particularly words of a future threat. For defendant to be liable, the words must be coupled with conduct. Yet, words can negate reasonable apprehension.

Absolute Work Product

Work product that cannot be discovered. Mental impressions, opinions, conclusions, and legal theories.

Qualified Work Product

Work product that is discoverable (once P has shown a substantial need for the work product and that it is not otherwise available).

Complete Integration (Parol Evidence Rule)

Written agreement that the court finds is final and complete.

Partial Integration (Parol Evidence Rule)

Written agreement that the court finds is final, but not complete.

Integration (Parol Evidence Rule)

Written agreement that the court finds is the final agreement. Triggers the parol evidence rule.

Libel

Written or printed publication of defamatory language.

Right of Survivorship in a Tenancy by the Entirety?

Yes

Must parties be allowed to make specific objections to jury instructions and to the rejection of their proposed instructions?

Yes before final argument and instruction.

Can implied warranties be disclaimed?

Yes by either conspicuous language or language of "as is" or "with all faults".

May P recover damages for future harm in a negligence action? What must be shown?

Yes, P may recover damages for future harm. Hence, P is entitled to prospective damages for impaired future earnings capacity (discounted to present value). P need not show actual economic loss to recover damages. P is entitled to recover non-economic damages (e.g., pain and suffering) without showing a dollar amount for those damages).

May a buyer obtain specific performance of an oral land sale contract?

Yes, a buyer may obtain specific performance of an oral land sale contract if the buyer has 1) taken possession of the land and 2) made substantial improvements to the land/paid all or part of the purchase price. Two theories support this remedy: (i) the buyer's acts unequivocally evidence an oral contract; and (ii) the buyer's detrimental reliance estops the seller from asserting the Statute of Frauds as a defense.

Does part performance of a sale of ordinary goods contract satisfy the Statute of Frauds.

Yes, but only to the extent of part performance.

Can D purposefully avail without setting foot in the forum?

Yes, by causing an effect there.

After TPD is joined, may TPD assert a claim against P?

Yes, if the claim arises from the same T/O as the underlying case.

After TPD is joined, may P assert a claim against TPD?

Yes, if the claim arises from the same T/O as the underlying claim.

May courts issue ex parte TROs?

Yes, in limited circumstances.

Does part performance of a sale of specially manufactured goods contracts satisfy the Statute of Frauds?

Yes, provided seller has made a "substantial beginning". Seller has done enough work that it is clear what she is working on is specially manufactured.

Can contract options be assigned?

Yes, unless the option otherwise provided.

Can a corporation be a citizen of two states at a time?

Yes.

Can conduct be a source of contract terms?

Yes.

Does full performance of a services contract satisfy the Statute of Frauds?

Yes.

In regards to Third-Party Beneficiaries, can beneficiaries recover form promisors?

Yes.

In regards to Third-Party Beneficiaries, can promisees recover from promisors?

Yes.

Are damages required for a finding of intentional infliction of emotional distress?

Yes. Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury is not required. The more outrageous the conduct, the less proof of damages is required.

Can the examinee in a medical exam obtain his report?

Yes. But in doing so, he waives any privilege he might have concerning testimony about all examinations of that medical condition.

Can a court raise Rule 11 problems sua sponte?

Yes. Court will issue "order to show cause" why sanctions should not be imposed. Court must give chance to be hears before imposing sanctions on anyone.

Can P use substituted or agent service even if personal service would be possible?

Yes; all three options are alternative. Use whichever you want.

Duty to accept representation (PR)

You are free to accept or reject any case.

Metadata in intentionally sent documents (PR)

You are permitted to mine such data.

What is the scope of discovery?

You can discover anything relevant to a claim or defense. Relevant includes things that are "reasonably calculated to lead to the discovery of admissible evidence."

Ads + Claims of specialty (PR)

You can explain your field of practice, but do not advertise claims of specialization unless you are a "certified specialist". ABA: Allows certification by approved organizations, which must be identified in the communications. CA: Requires the 4 Es: Experience, Examination, Education, and Evaluation.

Can lawyers limit liability for misconduct? (PR)

You cannot limit your client's right to report you for professional malpractice or to cooperate in an investigation. You cannot limit your malpractice liability when you enter in a relationship with your client UNLESS under ABA rules, client is independently represented in making the agreement. CA: NOT ALLOWED AT ALL. If a client makes a malpractice claim against you, you can only settle after written advice to the client to consult on outside lawyer first.

Close relationships with your adversary's lawyer (PR)

You cannot oppose a party represented by your relative without client consent. "Close relations" include immediate family. Purely personal conflict is not imputed to colleagues, nor is a sexual relationship with the client. CA: Explicitly recognizes other "intimates" As a purely personal conflict, it requires only written disclosure. CA also requires disclosure of any legal, business, or personal relationship with any party or witness.

Conflicts b/t or among Clients: Opposite sides in same proceeding

You cannot represent opposing parties in the same matter. Always unreasonable.

Dealing with the Press (PR)

You have a duty not to interfere with a defendant's right to a fair trial. You are your agents must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case. Prosecutors and their aides must not make comments that have a substantial likelihood of heightening public condemnation of the accused.

Duty of Loyalty (PR)

You have a duty of loyalty to your client. If an interest of another client, yourself or a third party materially limits or is adverse to representation, you have a conflict of interest.

Duty of Diligence (PR)

You have a duty to diligently and promptly pursue your case to completion.

Duty to communicate (PR)

You have a duty to keep your client informed about the case, answer client communications, and convey settlement offers. If settlement offer is made to joint clients, convey the offer to all and be sure they agree on the division of the settlement before accepting.

Duty of Competence

You have a duty to render competent service to your client. The ABA defines competence as using the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. If you don't know the relevant law, don't take the work unless you can learn it without undue expense or delay, or you work with a lawyer competent in the area.

Communication with corporation (PR)

You may not contact any current employee without counsel consent whose communication might bind or be imputed to the organization or constitute an admission on its party. CA: Consent is required for interviews of an officer, director or managing agent.

Preparing legal instruments: What's prohibited? (PR)

You may not draft a legal instrument for a client who is not your close relative, if it provides a substantial gift to you or your relative.

What disclosures must you make of "documents" in initial disclosures?

You may produce copies or a description of these things IN YOUR CONTROL.

Defense Exception to the Duty of Confidentiality

You may reveal information necessary to establish your claim or defense against a client. This includes seeking an ethics opinion.

Permissive Withdrawal (PR)

You may withdraw from a case if you convince the court there is good case. Recognizes causes include your client persisting in a criminal, fraudulent, or repugnant course of action, or failing to fulfill an obligation to you--e.g., a fee agreement--after reasonable warning. The ABA also allows withdrawal if representation will unreasonably financially burden you, if the client has used your services for a crime or fraud, or anytime it won't damage the clients' interests.

How must you respond to interrogatories?

You must answer from information reasonably available to you. You have to do your homework (different from a deposition)!

What is unique about the discovery tool of the medical exam?

You must get a court order.

What is the absolute prerequisite to bringing RJMOL?

You must have moved for JMOL at a proper time at trial.

Communication with represented entities (PR)

You must not communicate with a person you know is represented by counsel on the subject of your inquiry without consent of his own counsel unless authorized by law or when giving a second legal opinion.

Lawyer's duty re: witness perjury

You must not counsel or assist a witness to testify falsely or to become "unavailable". If you know (not reasonably believe) that a witness will commit perjury, you must refuse to put them on the stand. If you only reasonably believe witness will lie, these rules are permissive.

Lawyer's duty re: client perjury (Generally)

You must not knowingly facilitate client perjury.

Communications with adversaries and third parties (PR)

You must not lie to people or mislead them as to your interests. You must not violate the legal rights of a person to obtain evidence, or use means with no purpose but to delay, burden, or embarrass them.

Duty to present facts and evidence truthfully

You must not make a false statement of material fact or offer evidence that you know is false to a tribunal or fail to correct a false statement of material fact or law that you previously presented.

Gifts to the lawyer (PR)

You must not solicit a substantial gift from a client.

Duty to produce evidence

You must not suppress any evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty. You must not obstruct access to or tamper with fruits of instrumentalities of a crime.

In stating the claim (in the complaint) what must a P do?

You must plead facts supporting a plausible claim . Judge uses their own experience and common sense in evaluating the statement.

Lawyer's duty re: client perjury (Civil case)

You must refuse to call a witness, including your client if you know he intends to perjure himself.

When must a lawyer reject representation? (PR)

You must reject a case if taking it would violate a law or ethical rule. E.g., you are not in physical or mental shape to take the case.

Sarbanes-Oxley Reporting (PR)

You must report any matter to the highest authority. If you reasonably believe it necessary to prevent fraud, perjury, or substantial injury to the organization or investors, or to rectify financial injury from a violation that involved your services, then you may disclose confidential information to the SEC w/o client consent.

Mandatory Withdrawal (PR)

You must withdraw form a pending case if fired or if continuing would violate a law or ethical rule. CA: Explicitly requires withdrawal if a client acts without probable cause to harass or maliciously injure another.

Procedures for withdrawal (PR)

You must: (1) Provide timely notice to client and (2) Promptly return: (i) any unspent fee and expense advances, and (ii) all of the client's property and material papers. Include everything needed to pursue the case, even your work product. CA: Forbids holding your client's materials hostage to get paid.

Extortion v. Robbery

You needn't take anything from a person for extortion to exist. Threats for extortion are of future harm, not imminent harm.

Conflicts with Third Party Interference: General Rule (PR)

Your sole duty is to your client, not to any third party.

Zoning + Encumbrances

Zoning is NOT treated as an encumbrance on title; however, violations of a zoning ordinance do constitute an encumbrance of title.

Vested remainder subject to an executory interest is sometimes called..

a Vested remainder subject to total divestment OR a vested remainder subject to an executory limitation.

A Terry stop is...

a brief detention for the purpose of investigating suspicious conduct.

Contribution allows any defendant required to pay more than his share of damages to have....

a claim against any other jointly liable parties for the excess.

A D who is not "at home" in the forum states can only be sued there for...

a claim arising from those activities.

Today, courts will presume a....UNLESS language shows...

a fee simple was granted, unless language shows a clear intent to do otherwise

Remainders never, ever follow...

a fee simple.

Apprehension under the intentional tort of Assault is judged by...

a reasonable person test.

In order to make a brief detention/investigatory stop, police must have...

a reasonable suspicion supported by articulable facts of criminal activity.

When is negligence per se inapplicable?

a) where statute was not meant to prevent the type of harm that occurred b) where a plf was not in the class of plfs the statute meant to protect c) where compliance would be more dangerous than violating the statute d) where compliance with the statute is not in the def's control

Co-conspirator liability is based on...

accomplice liability

Remainders never...

affect the estate that comes before them.

The FSA must be fully...

alienable. There can be no direct restraints on transfer of ownership of FSA.

Duress is a defense to...

all crimes EXCEPT homicide.

A criminal defendant's right to counsel applies to...

all critical stages of a prosecution.

Easements in gross that are commercial can...

always be transferred.

If a future interest in a Grantee is NOT a remainder, then it must be...

an executory interest.

It is possible to commit a larceny of your own property if..

another person has a superior right to possession of that property at the time of taking.

State courts can hear...

any case (with a few exceptions)

Specific instances of D's bad conduct may be admitted to prove...

anything other than character = MIMIC

Defendant in a grand jury has no right to...

appeal or send witnesses.

In battery, force needn't be... (Criminal)

applied directly.

If your client disputes your fee, the ABA encourages...

arbitration. In CA, a lawyer is required to participate in fee arbitration if the client sues and requests it.

Arrest warrants are generally not required when...

arresting someone in a public place.

Contract providing "No assignments" prohibits...

assignments AND delegations.

How many jurors must vote to return a verdict?

at least 6 unless the parties agree otherwise.

For apprehension under the intentional tort of Assault to be shown, the plaintiff must have been...

aware of the threat from the defendant's act.

Being put in jeopardy for a lesser offense...

bars re-trial for any greater offense (assuming lesser is subsumed within greater offense). ONE EXCEPTION: Battery in which the victim later dies due to injuries; allows for murder prosecution.

Being put in jeopardy for a greater offense...

bars re-trial for any lesser included offense.

False representation of False pretense must...

be as to a present or past fact. False promise to do something in the future cannot ground liability for False Pretense.

Speech by the government cannot...

be challenged as violating the 1st Amendment.

Advertising must not...(PR)

be false or misleading (Must not mislead or omit material information). Don't raise unjustified expectation or make unverifiable comparisons. Must not harass or solicit someone who has said she wants to be left alone. CA: Presumes improper any ad that contains guarantees, warranties, or predictions (GWP) of a result. No testimonials or endorsements may be used unless there is an express disclaimer that they are not a "GWP".

Joinder rules starting with "C" are claims...

between existing parties.

When the Fifth Amendment privilege against self-incrimination can be asserted...

by anyone in any type of case.

Fifth Amendment protects citizens from...(Testimony)

compelled testimony. Does NOT protect citizens from having the government use physical evidence in incriminating ways.

In regards to potential and actual conflicts, CA strictly requires...

consent for a potential conflict and an additional disclosure and consent if it ripens to an actual conflict.

Congress, by statute or the Commerce Clause, may apply...

constitutional norms to private conduct.

If the maximum authorized sentence is up to or including 6 months in a criminal case, there is no...

constitutional right to jury trial.

At-large elections are...

constitutional unless there is proof of a discriminatory purpose (discriminatory impact not sufficient).

If the grantee is not in existence at the time the conveyance takes effect, then the remainder is...

contingent on the Grantee being born and therefore ascertainable.

A case is not a class action until...

court certifies the class.

What is the trigger for required Miranda warnings?

custodial interrogation.

Type 2 class cannot seek...

damages

An officer need not "knock and announce" if knocking and announcing would be...

dangerous and futile or inhibit the investigation (lead to destruction of evidence).

An offer that has been terminated is...

dead.

Lawyers must preserve the tribunal's...

decorum

Contract providing "No delegations" prohibits...

delegations

Privately paid police actions do not constitute governmental conduct under the Fourth Amendment unless they are....

deputized with the power to arrest.

Anything that can be done by treaty can be...

done by executive agreement.

When Congress act there must be...

express or implied Congressional power. No general police power, with a few exceptions

Prosecutor cannot make negative comments on defendant's...

failure to testify (with one exception) or on defendant choosing to remain silent after begin given Miranda warnings.

Apprehension under the intentional tort of Assault should be be confused with...

fear or intimidation.

Every single claim in federal court must have...

federal subject matter jurisdiction.

Under the Erie doctrine, a federal court sitting in federal question jurisdiction applies...

federal substantive and procedural law.

Police need probable cause to arrest you and compel you to come to the police station either for...

fingerprinting or interrogation.

Robbery can be accomplished through...

force or threat.

Estates with future rights of possession are called...

future interests

Before imposing a Rule 11 sanction, the court must...

give you a chance to be hears.

The Constitution applies only to...

government action. Private conduct need not comply with the Constitution.

Where a defendant may not be competent to stand trial, a judge...

has a duty to conduct an independent inquiry if there is evidence that the defendant may not be competent to stand trial.

D takes his plaintiff as...

he finds them.

When defendant breaches a plea bargain...

his plea and sentence can be withdrawn and the original charges reinstated (no Double Jeopardy).

Under the Fourth Amendment, you have NO expectation of privacy and therefore no standing for anything that you...

hold out to the public.

Bail issues are...

immediately appealable.

A Tenancy for Years over 1 year must be...

in writing under the Statute of Frauds

Hearsay is usually...

inadmissible

Irrelevant evidence is always...

inadmissible.

One held vicariously liable may obtain...

indemnification from the person whose conduct actually caused the damage.

One who is held liable for damages caused by another simply because of his relationship to that person may seek...

indemnification from the person whose conduct actually caused the damage.

Larceny can be committed through the act of an...

innocent agent.

Once the deed has been accepted at closing, the contract...

is extinguished.

A court must give a jury instruction if....

it is supported by some evidence.

When two or more negligent acts combine to cause an indivisible injury, each negligent actor will be...

jointly and severally liable. If the injury is divisible, each D is liable only for the identifiable portion.

Government conditions on development of property must be...

justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.

If the buyer accepts the goods, it cannot...

later reject then.

Embezzler always has...

lawful possession before illegal conversion.

At common law "to A" created a...

life estate.

With the death penalty, the State by statute may not...

limit the mitigating factors. All relevant mitigating evidence must be admissible or the death penalty statute is unconstitutional.

Defamatory Language must be directed towards a....

living person. Defamation of a deceased person is not actionable.

Content-based restrictions on speech generally must...

meet strict scrutiny.

Court orders suppressing speech must...

meet strict scrutiny. Procedurally proper court order must be complied with until they are vacated or overturned. A person whose violated a court order is barred from later challenging it.

Laws requiring disclosure of group members, where such disclosure would chill association...

must meet strict scrutiny.

Content-neutral laws burdening speech generally...

need only meet intermediate scrutiny.

Complete Diversity

no P may be a citizen of the same state as any D.

Consent of victim is generally...

no defense.

In regards to conflicts of interest, ignorance is...

no excuse.

Strict Liability crimes require...

no intent.

Temporarily denying an owner use of property is...

not a taking so long as the government's action is reasonable.

A partial taking by eminent domain does not release the tenant from...

obligation to pay full rent.

A one-year Tenancy for Years may be...

oral

What interlocutory orders are reviewable as of right:

orders granting, modifying, refusing preliminary or permanent injunctions.

A contribution defendant must be...

originally liable to the P. If the contribution D has a defense that would bar liability, she is not liable for contribution.

Any tenant in common can force a...

partition.

A Terry frisk is a...

pat down of the outer clothing and body to check for weapons.

In Constitutional Defamation, fault on defendant's part depends on...

plaintiff's status. Public Officials/Figures must prove Actual Malice. Private persons need only show negligence regarding the falsity.

If court issues a TRO, an applicant must...

post a bond to cover the other side's costs and damages if it turns out restraint was wrongful.

If the court grants a preliminary injunction, the Applicant must...

post a bond.

Government may not punish private possession of obscene material, but the government may punish...

private possession of child pornography.

13th Amendment can be used to prohibit...

private race discrimination. Although 13th amendment prohibits slavery and involuntary servitude, Sec. 2 allows Congress to adopt laws to enforce the amendment.

Arrest must be based on...

probable cause.

Speech by government employees on the job in the performance of their duties is not...

protected by the First Amendment.

Profane and indecent speech is generally...

protected by the First Amendment. Exceptions for speech over the broadcast media (b/c uniquely accessible and intrusive into the home) and in schools.

Regarding the duty of confidentiality, lawyers must use...

reasonable electronic security to prevent inadvertent access to or disclosure of client confidences.

Where one decides to rescue, they must do so ____ (torts)

reasonably. They will be held liable for any damages that arise from a negligent rescue.

Embezzler needn't...

receive benefit himself.

Effect of avoidable damages

reduces the overall damage award.

Congress cannot use Sec. 5 of the 14th amendment to...

regulate private behavior. Can only be used to regulate state and local action.

Impeachment does not...

remove a person from office.

To create an FSCS, magic words must be followed by language where the Grantor expressly...

reserves the right to re-enter and retake the premises.

In a tenancy in common, there is no...

right of survivorship

Covenant to pay rent always...

runs with the land and is thus enforceable based on either privity of estate or privity of contract.

Proceedings of grand juries are...

secretive.

The basic duty of prosecutors is to...

seek justice, not to win cases.

What must a party seeking to amend do if there is no right to amend...

seek to leave of court.

Most contracts with delivery obligations are what kinds of contracts?

shipment contracts.

When a bailment is for the sole benefit of the bailor, the bailee owes only a ___ duty of care.

slight

Joinder rules starting with "I" involve joining...

someone new to the case.

Typically, claim of ineffective assistance of counsel can only be made by...

specifying particular errors of trial counsel.

Holders of executory interests do not have...

standing to sue for waste.

Under the Erie Doctrine, a federal court sitting in diversity applies...

state substantive law and federal procedural law. Federal procedural laws are found in federal statutes and the FRCP. If there is no federal law on point, the court must determine whether an issue is substantive or procedural.

Exercise of personal jurisdiction generally must be authorized by...

statute and constitution.

Under the Establishment Clause, government cannot discriminate against religious speech or among religions unless...

strict scrutiny is met.

An offer cannot be accepted if it has been...

terminated.

A grand jury witness may be compelled to...

testify based on illegally seized evidence.

If the party intent of grantor in creating a joint tenancy is unclear, the modern rule will presume...

that a Tenancy in Common is created.

Deeds (like land sale contracts) are subject to...

the Statute of Frauds (Must be a writing signed by the Seller).

If a contract claim is "within the Statute of Frauds," then...

the Statute of Frauds' requirement of objective proof must be satisfied to get through that Statute of Frauds barrier to get to a trial.

Subject Matter Jurisdiction is about the court's power over...

the case.

CA requires a lawyer to participate in fee arbitration if...

the client sues and request it.

In regards to your client, you have a duty to safeguard...

the client's property by labeling and storing in a safe place.

Summary Judgment + Evidence

the court will look at evidence in ruling on the motion.

Bill of Rights applied directly only to...

the federal government.

In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless:

the findings are clearly erroneous.

Mistake of facts is a defense only when...

the mistake negates intention.

An officer may perform a Terry or investigatory frisk when...

the officer has articulable facts giving rise to a reasonable suspicion that the person is armed and dangerous

Personal Jurisdiction is about the court's power over...

the parties.

For preclusion, if Case 1 and Case 2 are in different judicial systems, the court in Case 2 applies...

the preclusion law of the judicial system that decided Case 1.

Larceny is a crime against possession rather than ownership, requiring only that...

the property be taken from someone who has a possessory interest superior to that of the defendant.

For Accomplice Liability, Accomplices must have...

the requisite intent that the crime be committed.

Double jeopardy bars retrial for the same offense by...

the same sovereign.

When a culpable state of mind is specified by an offense without indicating to which element it applies...

the state of mind applies to all material elements of the offense unless a contrary purpose appears in the statute.

If D fails to deny specifically in a request for admission within 30 days...

the statement is deemed admitted.

If an officer's affidavit or probable cause is based on informant information, its sufficiency is determined by...

the totality of the circumstances. Informant's credibility and basis of knowledge are all relevant factors in making this determination.

Defendant can be found mentally competent to stand trial, yet incompetent to represent himself as determined by...

the trial judge's discretion.

Laws that prohibit a group from discriminating are constitutional unless...

they interfere with (1) intimate association or (2) expressive activity.

Application to intervene must be...

timely

In a post-charge identification lineup, the accused is entitled...

to have counsel present at all times during the lineup procedure when the accused is visible to the witness.

Contribution is not applicable...

to intentional torts.

Generally there is no legal duty to ..., but sometimes there is a ....

to rescue; legal duty to act (applies in both crim and tort)

Unless the parties agree otherwise, what jury vote is required for a verdict?

unanimous.

Fighting words laws are...

unconstitutionally vague and overbroad.

Use of confidential information to a client's disadvantage without her consent...

violates the duties of loyalty and confidentiality.

Joint Tenancy cannot be severed by...

will.

Payment for your services form a third party is permitted only...