MEE One Sheet Rules

First statement on murder problem.

"In order to be guilty of murder, defendant must have the mens rea of malice aforethought which is satisfied in most jurisdictions with intent to kill (first- degree), with knowledge that his acts would kill (first-degree), with intent to inflict great bodily harm (second-degree), or with reckless disregard of an extreme risk to human life (second- degree)."

Fifth Amendment: Right to Counsel and Right to Remain Silent

"Law enforcement officers are required to read Miranda warnings to a suspect when the suspect is subjected to an in-custody interrogation."

Negligence Essay Start

"In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant's conduct fell below the applicable standard of care, and that the defendant's conduct was both the cause in fact and the proximate cause of the plaintiff's injuries."

Requirements for an agency relationship

(1) consent by both the principal and the agent that the agent will act for the principal's benefit and (2) that the agent is subject to the principal's control.

Apparent Authority

(1) the person dealing with the agent must do so with a reasonable belief in the agent's authority and (2) the belief must be generated by some act or neglect on the part of the principal.

Three Requirements for Attachment

(1) value must be given by the secured party to the debtor (e.g., a loan); (2) the debtor must have rights in the collateral; and (3) there must be a binding security agreement which requires (mnemonic = "AID"): authentication, intent to create a security agreement, and a description of the collateral.

Steps to Dissolution of Partnership

(i) dissociation, (ii) winding up, and (iii) termination

Statute of Frauds: UCC

A contract for the sale of goods for a price of $500 or more is not enforceable unless there is a writing signed by the party against whom enforcement is sought that is sufficient to indicate that a contract for the sale of goods has been made between the parties. The writing need not contain all terms of the contract, but it is not enforceable beyond the quantity of the goods shown. Exceptions to be aware of are the confirmatory memo exception, the part performance exception, the specially manufactured goods exception, and the judicial admissions exception.

Divisible Contracts

A contract is divisible so long as (1) it is apportionable, and (2) the parties would have contracted for each part separately. A party that performs one or more parts of the contract may collect payment for those parts even if he does not substantially complete performance of his duties.

Duress

A contract is voidable when it is established that a party's manifestation of assent is induced by an improper threat that leaves the party no reasonable alternative.

Choice of Law: Real Property

A court generally uses the law of the situs for land (and will apply the law where the real property is located). Occasionally, the state will characterize a dispute over real property as, say, a contract dispute, and look at which state has the most significant relationship to the property if it makes more sense in the given case.

Remedy: Sale

A court may order a sale

Division based on premarital agreement

A court will enforce a premarital agreement so long as it is voluntarily made, substantively fair, and if full disclosure of assets and obligations was made. A court will not, however, enforce a premarital agreement regarding child custody or support if it is not in the best interest of the child.

General Power of Appointment: Minority View

A general testamentary power of appointment can be exercised by general language in the beneficiary's will (such as the residuary clause) even if it makes no reference to the power in the instrument (e.g., "Everything to my husband"—the husband will get it), unless the creating instrument of the power made an express gift in default or the instrument stated that the power needed to be specifically mentioned.

Severing a Joint Tenancy

A joint tenancy can be severed in one of four ways (mnemonic = "G SAM"): by giving it away during life, by signing a contract for sale, by an actual judicial sale by a judgment lien creditor, or by granting a mortgage in a title theory state.

Creating a Joint Tenancy

A joint tenancy requires the four unities: time, title, interest, and possession. Most states also require using the language "joint tenancy" and adding an express reference to "survivorship" or "survivors" to create a joint tenancy.

Choice of Law: Tort Claim

A jurisdiction analyzes a specific tort claim under the "most significant relationship" approach found in the Restatement (Second) of Conflict of Laws. The Restatement lists four factors to determine which state has the most significant relationship to the occurrence and the parties (mnemonic = "I Can't Dance, Really." Picture someone dancing and negligently hitting someone else in the head with his arm, which happened to cross state lines and cause a tort claim to arise J): (1) the place where the injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and (4) the place where the relationship, if any, between the parties is centered.

Unprotected Speech

A law regulating unprotected speech needs to pass rational basis scrutiny.

Symbolic Speech

A law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is narrowly tailored to an important governmental interest and is unrelated to the suppression of the speech.

Advancements: Common Law

A lifetime transfer to an heir was presumptively treated as a down payment on the heir's intestate share and thus is taken into account when computing the heir's intestate share. At common law, this only applied to a gift to a child (not, say, a gift to a sibling), but most states have broadened it to include any heir.

Recognition of Marriage

A marriage valid under the law of the place in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage.

Purpose of Appointment

A person writing a will or trust can give her beneficiaries a power of appointment, which enables the beneficiary to designate who will receive specific property.

Preliminary Injunction

A preliminary injunction is equitable relief with the objective of preserving the status quo. If it is granted, the matter must be tried within six months unless the parties stipulate or good cause is shown. The court must give notice to the adverse party

Present Sense Impression

A present sense impression is "a statement describing or explaining an event or condition made while or immediately after the declarant perceived it."

Principal: Vicarious Liability

A principal can be vicariously liable, or directly liable, for the torts committed by his agent. The agent is always liable for his own torts.

What is a principal bound to if an agent enters into a contract?

A principal is bound on a contract entered into by an agent if the agent had authority to enter into the contract.

Shareholders: Voting by proxy exception

A proxy is not revocable if it explicitly states it is irrevocable and is coupled with an interest (e.g., a sale of shares). Many states say that a proxy is valid for 11 months unless otherwise stated.

Business Records

A record of "acts, events, conditions, opinions, or diagnoses" is admissible if it is made "at or near the time" of the event recorded by a "person with knowledge" of the event. Further, the making of the record must occur in the course of a regularly conducted business activity, and it must be the regular practice of the business to make such a record.

Recollection Recorded

A record that is on a matter that the witness once knew about, but now cannot recall well enough to testify fully and accurately, which was made while the matter was fresh in the witness's memory, may be read into evidence (however, the proponent may not offer it as an exhibit).

Rejection

A rejection is a manifestation of intent to not accept the offer. It terminates the offeree's power to accept an offer. It is effective when received by the offeror. Note: if a rejection is sent and then an acceptance is sent, whichever the recipient receives first is effective.

Time, place, and manner restrictions

A restriction in a public forum—that is, one historically associated with free speech rights (e.g., streets, sidewalks, parks), or a "designated" public forum (such as a school that opens its doors to after-school activities)— must be content neutral, narrowly tailored to serve an important governmental interest and leave open alternative channels of communication. A restriction in a non-public forum (airports, government workplaces, etc.) must be viewpoint neutral and reasonably related to a legitimate governmental interest.

Termination by Settlor

A settlor may terminate the trust if all beneficiaries are in existence and all agree to the termination.

Lawsuits by shareholders against the corporation

A shareholder may file an action to establish that the acts of the directors are illegal, fraudulent, or willfully unfair and oppressive to either the corporation or the shareholder. Whether a suit is appropriately brought as a direct or derivative action depends on the injury.

Filing a derivative lawsuit has extra requirements ("SAD")

A shareholder may not commence or maintain a derivative suit unless three requirements are met (mnemonic = "SAD"): (1) standing to bring a lawsuit, (2) adequacy (the shareholder represents the interests of the corporation), and (3) demand (generally the shareholder should file a written demand and wait 90 days before filing a suit unless irreparable injury would result or a demand would be futile). Any recovery goes to the corporation. A derivative lawsuit can be dismissed with court approval if it is not in the best interest of the corporation to continue it.

Shareholders: Voting by Proxy

A shareholder may vote by proxy. A shareholder can appoint a proxy by signing an appointment form or making a verifiable electronic transmission. A shareholder may not orally ask someone to serve as a proxy. A proxy is generally revocable (even if it states it is irrevocable), and any action inconsistent with the grant of a proxy works to revoke it. Thus, when two or more revocable proxies are given, the last given proxy revokes all previous proxies.

Spendthrift Trust

A spendthrift trust restrains "both the voluntary and involuntary transfer of a beneficiary's interest."

Opposing party's statement

A statement made by an opposing party offered against that party is not hearsay.

Custody

A suspect is in custody if there is a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.

Invitee

Definition: those that enter either to confer an economic benefit (e.g., customers or employees of store) or enter land that is open to the public at large (church, museum, etc.). Rule: the premises possessor must warn or make safe all dangers that the landowner knows or should know of. The premises possessor has a duty to inspect!

Termination of Easements

Easements may be terminated in a variety of ways such as by their express terms, written release, merger of the dominant and servient tenements, prescription, estoppel, condemnation, or abandonment. For abandonment, mere non-use of the easement is not sufficient to abandon it. There must be an act of abandonment.

Vicarious Liability: Employer/Employee

Employers are vicariously liable for torts of their employees if the torts are committed within the scope of employment. (This is called "respondeat superior.") Intentional torts are usually outside the scope of employment unless they were done for the purpose of serving the employer or if they were foreseeable.

The government must prove the classification is substantially related to an important government interest. This applies to classifications regarding gender and illegitimacy.

Equal Protection Clause: Intermediate Scrutiny

The plaintiff must prove that the law is not rationally related to a legitimate government interest. (The plaintiff usually loses.) This applies to every other classification—poverty, wealth, age, education, etc.

Equal Protection Clause: Rational Basis

Personal jurisdiction can be either

General or specific

Spendthrift Trust: Right of Creditor Generally

Generally, a creditor may not reach part a beneficiary's distribution (i.e., by garnishment or attachment) prior to the beneficiary reaching it.

Relocation of Parent and Child

Generally, a move sought in good faith that will serve the child's best interest will ordinarily be approved. The court will balance the impact on visitation by the noncustodial parent against the benefits of the move to both the child(ren) and the custodial parent. There are a few different views (which you should mention if applicable): some states place the burden on the relocating parent and some put it on the objecting parent.

When a gift fails because the property no longer exists: ademption

If specifically-devised property (i.e., property that is specifically described in the will) is not in the testator's estate when the testator dies, the bequest adeems—that is, the gift fails. Under many statutes, if the testator replaced the property, or if there were insurance proceeds unpaid at death, then the beneficiary would receive that in place of the property.

Modification under the UCC

Only good faith is needed to modify a contract.

Debts: Outgoing Partners

Outgoing partners are personally liable for debts incurred during their time at the partnership.

Duty to Account

Partner must account for any profits.

Partner Liability

Partners "are liable jointly and severally for all obligations of the partnership." Even if a partner enters into a contract without actual authority to do so, the partnership and the partners are bound (so long as the partner had apparent authority). The creditor must obtain a judgment against the partners personally to go after each partner's personal assets. The creditor should attempt to collect from the partnership before seeking personal assets of the partners.

Fiduciary Duty of Partners

Partners are in a fiduciary relationship with one another and must act honestly and in good faith. They are charged with the duty of loyalty, duty of care, and the duty to account.

General Partnership: Debts

Partners are jointly and severally liable for partnership debts.

Partners: Co-Managing Ordinary Affairs

Partners have equal rights to co-manage with regard to ordinary affairs. A majority vote wins if there is a disagreement.

LLP or LP: What's Required

Partnerships other than general partnerships must file a certificate with the state to be properly formed. Liability is limited.

Perfection

Perfection can occur by filing a financing statement. It can be automatic in some cases (e.g., a PMSI in consumer goods). Or, an interest can be perfected by possession or control.

Work Product

Prepared in anticipation of litigation.

Seven ways to impeach a witness

Prior inconsistent statements, bias and interest, conviction of a crime, "bad acts," reputation or opinion for untruthfulness, sensory deficiencies, and contradiction.

Evidence - Privileges

Privileges such as the attorney-client privilege, the spousal privileges, the physician- patient privilege (recognized in some jurisdictions), or the psychotherapist-patient privilege (recognized federally) can keep otherwise admissible evidence from being admitted.

Promissory Estoppel

Serves as a substitute for consideration. If there is (1) a promise, (2) reliance that is foreseeable and justifiable, and (3) enforcement is necessary to avoid injustice, the promise will be enforced.

How to terminate an agency relationship

Several ways, including the principal manifesting a desire to the agent to discontinue the relationship.

Shareholders

Shareholders are only owners and do not manage the corporation. Thus, they generally just have annual meetings. Written notice of meetings is required 10-60 days prior and must state the time, place, and purpose of the meeting. Shareholders can vote by proxy (have someone vote their shares for them) or by voting agreement. Generally, a quorum (majority of all outstanding shares required to vote) must be present to hold a vote.

When does Article 9 apply?

So far on the MEE, when the question requires examinees to know whether Article 9 applies, the answer has been yes—even if the parties do not call the transaction a "security interest." Article 9 applies to all security interests in personal property or fixtures by contract. The words "security agreement" do not have to be specifically stated for one to exist. Article 9 also applies to "lease agreements" that are not "true leases" (but instead, security interests).

Statute of Limitations Exception: Borrowing Statute

Some states have borrowing statutes which indicate that the other state's statute should be used in certain cases.

Material Benefit

Some states recognize an exception to past consideration limitations in which a promise is made after receipt of a significant benefit (usually the promise arises after a benefit received in an emergency situation).

Statute of Limitations Exception: Interest Analysis

Some states will simply use an interest analysis to resolve choice of law issues, including statute of limitations issues.

Unprotected Speech: Examples

Speech inciting immediate lawless or violent behavior Fighting words True threats or words as conduct Obscene Speech

Speech inciting immediate lawless or violent behavior (Clear and present danger)

Speech that is directed at inciting and likely to incite imminent lawlessness.

The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.

Start of First Amendment Speech

General Damages for breach of contract

Start your essay as follows: "The normal measure of damages for breach of contract is expectation damages, which aim to give the non-breaching party the benefit of his bargain." Expectation damages must be foreseeable and proved with reasonable certainty. This is similar to the UCC rule, which puts the aggrieved party "in as good a position as if the other party had fully performed."

Federal courts may exercise personal jurisdiction to the same extent as the courts of general jurisdiction of the state in which the district court sits.

Starting a MEE question for civ pro question taking flae in federal court.

If a law discriminates against interstate commerce, it is invalid unless the state can show that the law was necessary to serve a compelling state interest and there is no reasonable non-discriminatory alternative (strict scrutiny). *A state law that discriminates against interstate commerce is usually unconstitutional.

State Law Discriminating Against Interstate Commerce

If a state law is nondiscriminatory on its face (that is, it imposes the same burden on those in-state and out-of-state) but it still burdens interstate commerce, it is valid only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce. *A state law that merely burdens interstate commerce is more likely to be constitutional.

State Law Imposing A Burden On Interstate Commerce

State Action: Definition

State action is present when a state passes a law, when a state permits its officials to take action, when a private actor is performing a traditional and exclusive government function (e.g., conducting elections, or running a company town—this is pretty narrow) or when private action is closely controlled by the state.

A TRO can be issued without notice to the adverse party (but only in limited circumstances and for a limited time). To secure a TRO without notice, the plaintiff needs to show a risk of "immediate and irreparable injury." The TRO lasts only long enough for the court to consider and resolve a request, but not longer than 14 days (unless the court extends it for good cause or the adverse party consents to an extension). TROs are considered to be "stop-gap" measures and last until the court decides whether to grant a preliminary injunction.

TRO Standard

Termination of implied actual authority

Terminates after a reasonable time or following a change in circumstances, death, or incapacity of the principal, etc.

A Failure to Record an Interest Acquired by Adverse Possession

The adverse possessor will prevail over a subsequent bona fide purchaser who complies with the recording act because there is no document that the interest holder could record.

Agent Becoming Bound

The agent is bound to a third party on a contract he enters into with the third party if the agent had no actual or apparent authority to enter into the contract. The agent is also liable if the principal is undisclosed or if the principal is "partially disclosed." The agent is bound to the principal for breach of contract if the agent acts beyond his authority.

Agent's Duties to the Principal

The agent owes a duty of care and a duty of loyalty (not to engage in self-dealing, not to profit without disclosure, and a duty to follow instructions). The principal may recover losses from and profits made by the breaching agent.

Incorporation

The articles of incorporation are filed with the state, and, if in conflict with bylaws, the articles control. A corporation is not generally liable for a contract entered into prior to incorporation unless it expressly or impliedly adopts (ratifies) the contract. The promoter (the person entering the contract on behalf of the to-be-formed corporation) is liable.

Dissociation

The dissolution of a partnership is the change in the relation of the partners. Prior creditors are entitled to personal notice of the dissolution of the partnership. Others who knew of the partnership are entitled to newspaper notice. Note that a partner can withdraw from a partnership by giving notice at any time. This will trigger dissolution in an at-will partnership.

Duties Heavily Tested on Corporations and LLC problems

The duty of loyalty and duty of care are heavily tested in Corporations and LLC problems. Whether a director of a corporation (or member of an LLC) breached the duty of care or loyalty is very fact-based. However, usually when duty of loyalty is an issue, the director or member has breached the duty.

Direct Liability

The employer can be directly liable for his own negligence if, for example, he fails to supervise employees or otherwise acts negligently in hiring, firing, or entrustment.

Insurance

The existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership or control, or impeachment.

Commercial Speech

The law must meet the Central Hudson test, which states that (1) the speech must be lawful and not misleading, (2) the statute must serve a substantial governmental interest, (3) the statute must directly advance that interest, and (4) the statute must be narrowly tailored.

Sexual or Indecent Speech

The law must serve a substantial governmental interest and leave open reasonable alternative channels of communication.

Defense: Insanity

The majority of states use the M'Naghten test. The defendant must prove he suffered a disease of the mind that caused a defect of reason, and as a result he lacked the ability to know the wrongfulness of the actions or understand the nature and quality of his actions.

Motion for Summary Judgment Standard

The moving party must produce evidence to show there is no genuine issue of material fact. The burden then shifts to the nonmoving party, which must then produce evidence to show that there is a genuine issue of material fact for trial. The motion is looked at in the light most favorable to the nonmoving party.

Attempt

The only inchoate crime that has been tested on the MEE is attempt. Know that the mens rea is "intent" and the actus reus requires "acts beyond mere preparation."

Shareholders: Who votes?

The record owner on the record date. The record date determines who is entitled to vote at a particular meeting—namely, those persons who were registered as shareholders "of record" on that date. Exceptions are if the shareholder died (then the shareholder's executor may vote) or executed a valid proxy (then the proxy may vote). Unless the articles of incorporation provide otherwise, each outstanding share (regardless of class) is entitled to one vote on each matter voted on at a shareholders' meeting.

Remedies for a breach of trust

The remedies include: suspending or removing a trustee, decreasing compensation, compelling a trustee to perform trust duties, compelling payment of damages, etc. (There are several other remedies, including asking the court to "order any other appropriate relief.")

Debtor's Means of Protection

The sale must be commercially reasonable The debtor must receive written notification of the sale. The debtor and perfected secured parties (or secured parties who have notified the secured party of their interest) must know when the chance to redeem the collateral is going to pass. (This is not necessary if the collateral threatens to decline rapidly.)

Resale

The secured party may sell or dispose of the collateral in a commercially reasonable way. The security interest is discharged when this occurs, but the debtor is liable for any deficiency. The obligation owed to the disposing secured party and any junior liens are paid off. (Senior liens remain on the collateral.)

Fourteenth Amendment: Voluntariness under the Due Process Clause

The standard for excluding a confession under the Due Process Clause is(1) whether the police subjected the suspect to coercive conduct and (2) whether the conduct was sufficient to overcome the will of the suspect. Neither the confession nor fruits of the confession can be admitted if the Fourteenth Amendment is violated.

Premises Liability

The standard of care owed depends on the legal status of the plaintiff

If a Miranda violation occurs

The statements are excluded from the prosecutor's case-in- chief. The "physical fruits" are not excluded if the statements were made voluntarily.

Felony Murder

This applies to any killing that occurs during the commission of a felony, an attempt to commit a felony, or a flight from a felony. The felony must be inherently dangerous, and the purpose of the felonious conduct must be independent of the homicide.

Actual Authority: Implied

This authority is present when the principal's conduct leads the agent to believe it has authority.

Advancements: Ademption by Satisfaction

This doctrine applies when there is a will (unlike the advancements doctrine). The Uniform Probate Code (UPC) states that a lifetime gift is not a prepayment unless: (1) the will says so, (2) the testator declares in a contemporaneous writing that the gift is to be deducted from the will, or (3) the devisee acknowledges in writing that the gift is in satisfaction of the bequest.

Interrogation

This includes questioning initiated by law enforcement officers or any words or actions that the police should know are reasonably likely to lead to an incriminating response from the suspect.

Contributory Negligence

This is a common law doctrine that states if the jury finds that the plaintiff's negligence contributed to his injuries to any degree, the plaintiff cannot recover. Most states have abandoned this doctrine.

Breach of Express Warranty

Under Article 2, affirmations of fact relating to the goods that are part of the basis of the bargain create express warranties that the goods will conform to those affirmations and descriptions. This warranty is breached if they do not conform.

Transfer to a more appropriate forum

Under Title 28, U.S.C. §1404 (2011), the federal court has authority to transfer a case to another federal district for the convenience of the parties and witnesses and in the interest of justice. The new forum must have subject matter jurisdiction and personal jurisdiction. The court will apply the law of the transferor forum.

Recording and Notice Acts: Common Law

Under common law, a grantor can convey only those rights that the grantor had at the time of the conveyance. Thus, common law follows the "first-in-time, first-in-right" principle. All states have recording acts that change the results of the common law principle.

Performance obligations

Under common law, a party must "substantially perform" its contractual obligations in order to demand performance (usually payment) from the other party. Courts will look at several factors to determine whether performance was substantial. Note that this is different from UCC Article 2, which requires perfect tender for "one shot" deals.

Counteroffer

Under common law, a statement is a counteroffer, rather than an acceptance, when the terms of the initial offer are changed—e.g., when a condition is added to the purported acceptance (Mirror Image Rule).

Pre-existing legal duty rule

Under common law, promising to perform a legal duty already owed to a promisor is not valid consideration. Exceptions include if the duty is changed (even slightly), unforeseen circumstances, etc.

Presumption of Revocability

Under the Uniform Trust Code, an inter vivos trust is revocable unless the instrument expressly states otherwise.

Common Law Approach to Class Gifts

Under the common law, if the gift or remainder to a deceased beneficiary has already vested and there is no applicable statute then it will go to whomever the instrument says it should go to or whomever the deceased person has specified in their will or through intestacy. (This also applies to gifts that are not made to classes.)

Duty to mitigate

Under the common law, the landlord has no duty to mitigate damages. Many states have abandoned this approach and require that the landlord make a reasonable effort to mitigate damages (by, for example, attempting to re-rent premises if the tenant wrongfully leaves).

Dependent relative revocation

Under this doctrine, a first will is not revoked if a later will is found invalid. Essentially, if a testator revokes a will or bequest based on a mistaken assumption of law or fact, the revocation of the will is ineffective if it appears that the testator would not have revoked the bequest had the testator had accurate information.

Which Court may issue a property division order

Unless the court has jurisdiction over the defendant spouse, it may not issue a binding property division or support order.

A corporate defendant is deemed to "reside" in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. To figure out where a corporate defendant resides, divide the state into districts (if it has more than one district) and see if the defendant would be subject to personal jurisdiction if any of those districts.

Venue for a Corporation

End of Marriage

Virtually all states are no-fault divorce states. Some states recognize fault-based grounds too. Annulment is also recognized for fraud and other reasons.

Mental Capacity and Undue Influence in Wills

Virtually every time that mental capacity or undue influence has been tested, the best answer is that the testator did have capacity and there was not undue influence present to invalidate the gift. However, remember that this is very fact-specific.

Abatement

When the assets of an estate are insufficient to satisfy all the gifts made by someone's will, then the gifts to the beneficiaries will be reduced ("abated") in the following order: intestate property, residuary gifts, general gifts, and specific gifts.

Priority with Security Interests

When two secured parties have a security interest in the same collateral, the first to file or perfect has priority. If no party perfects, then the first to attach has priority. Know that a perfected security interest beats an unperfected one—even if one has an unperfected PMSI. This has been tested multiple times!

Conflict of Law: Inheritance of Decedents' Estate

Whether a child is entitled to inherit, depends on the law of the intestate's domicile at the time of death. However, this is inapplicable to real property as the law governing real property is the law of the situs.

Conviction of a Crime

Whether the conviction can be used depends on (mnemonic = "NAD"): the nature of the crime (felonies or misdemeanors of dishonesty are automatically admissible; any felony is admissible if it passes a balancing test), the amount of time that has passed (if more than 10 years after conviction or release has passed, whichever is later, it is generally not admissible), and (only in criminal cases) whether the "witness" is the defendant (it is less likely to be admitted if the witness is a defendant because the probative value must outweigh its prejudicial effect).

Some states will apply the law of the state where the contract was executed. Other states (probably the majority) apply the law of the state with the most significant relationship to the parties and transaction.

Which state's law governs premarital agreements?

Even if an agency relationship exists...

it can terminate.

Lay Witnesses v. Expert Witnesses

Lay witnesses must have personal knowledge to testify. Expert witnesses need not.

Rejection of Goods

A buyer can generally reject goods for any reason under the perfect tender rule. (There are exceptions to this -- e.g., installment contracts).

A buyer in the ordinary course of business

A buyer in the ordinary course of business generally takes free of any security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence. (Note that the buyer is not in the ordinary course of business if he knows that the sale is in violation of a term in the security agreement.)

A buyer not in the ordinary course of business

A buyer not in the ordinary course of business takes collateral subject to a perfected interest. Generally, he does not take subject to an unperfected interest if he gives value and does not know about the interest.

Intestate Succession: Child

A "child" for purposes of intestate succession includes adopted children, children born out of wedlock, and "half-bloods" (but not stepchildren!)

Breach of the implied warranty of habitability

A builder of new homes impliedly warrants to the buyer that the home is habitable and fit for its intended purposes. This warranty applies to defects that are discovered within a reasonable time and are due to the builder's negligence or failure to do work in a workmanlike manner.

Consumer-to-consumer goods ("garage sale") exception

A buyer not in the ordinary course of business takes free of a security interest even though perfected, if he buys without knowledge of the security interest, for value, and for his own personal, family, or household purposes unless, prior to the purchase, the secured party has filed a financing statement covering the goods. The goods must be "consumer goods" both when the seller has them and when the buyer buys them for this to apply.

Transfer to a proper venue

A case is filed in the wrong venue, and, if transferred, the law of the transferee court would apply. Transfer to a proper venue has not been tested on the MEE.

Chraritable Trust

A charitable trust may be created for a charitable purpose. It must have a large number of not-readily-identifiable individuals (rather than a few identifiable individuals).

Modifying a Charitable Trust

A charitable trust may terminate if the charitable purpose becomes unlawful, impracticable, or impossible. However, cy pres may save the trust. Cy pres is a common law doctrine that is also a part of the Uniform Trust Code. It states: if a particular charitable purpose has become unlawful, impracticable, or impossible to achieve; no alternative charity is named in the trust; and the court finds that the settlor had general, rather than specific, charitable intent, then the court may apply cy pres to modify or terminate the trust by directing that the trust property be distributed in a manner consistent with the settlor's general charitable intent.

Negligence: Claims Against Children

A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances. (July 2015, Feb 2009) Exception—adult activity: if the child is engaged in adult activity—that is, one which is "normally undertaken only by adults, and for which adult qualifications are required" (e.g., driving a car, tractor, motorcycle, motorscooter, snowmobile, etc.), then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity. Exception—tender years: some states recognize the "tender years doctrine" in which a child less than seven years of age cannot be found negligent.

Harm: Eggshell skull

A defendant takes his victim as he finds him. The plaintiff with an "eggshell skull" who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for his injuries.

Lawsuits by shareholders against the corporation: Derivative Suits

A derivative suit is appropriate when the injury is caused to the corporation and a shareholder is trying to enforce the corporation's rights. (This also applies to LLCs.)

Lawsuits by shareholders against the corporation: Direct Suits

A direct suit is appropriate when the wrong done amounts to a breach of duty owed to the individual personally. (E.g., when a shareholder sues for denial of preemptive rights, payment of a dividend, or oppression in a close corporation.)

Duty of Loyalty: Corporation

A director must act in good faith and with a reasonable belief that what he does is in the corporation's best interest. The business judgment rule presumption does not apply if there is a duty of loyalty issue.

Duty of Loyalty: Partnership

A duty that a partner owes not to act adversely to the interests of the partnership

Liability on a mortgage: General Rule

A mortgagor (homeowner) can transfer the title to the property. However, the mortgage will remain on the property and the mortgagor is still personally liable on the note. Generally, a new transferee who takes the land "subject to" the mortgage is not personally liable. However, if the transferee "assumes" the mortgage, he is personally liable along with the original mortgagor. (Some jurisdictions say that if the transferee pays the mortgage payments, he impliedly assumes the mortgage. This view is brought up on the MEE, but it is considered the wrong answer on the MBE.) A novation occurs if the initial mortgagor, the new transferee, and the mortgagee all agree that the mortgagor is no longer liable and the transferee assumes all of the mortgagor's duties.

When will a motion to transfer be denied?

A motion to transfer to a more appropriate forum should be denied if the case could not have been filed there to begin with.

Start of partnership essay

A partnership is the association of two or more persons to carry on as co-owners, a business for profit . . . whether or not the persons intended to form the partnership.

Restitution (Also called unjust enrichment and quantum meruit)

A party may be able to recover restitution for any benefit conferred by way of part performance in excess of the loss that he caused by his own breach.

Mitigation

A party must mitigate damages when possible.

Periodic tenancy

A periodic tenancy has no fixed end date (e.g., a month-to-month lease is a periodic tenancy). It simply repeats until one party gives valid notice to the other. It can be created by an express agreement, implication (where the lease contains no end date), or operation of law (e.g., an oral lease that violates the Statute of Frauds because the term is more than one year). Valid notice—that is, notice equal to the rent-payment term—is required to terminate a periodic tenancy.

Fourth Amendment: Standing

A person has standing to raise a Fourth Amendment challenge if he has an expectation of privacy in the thing searched or seized.

Accomplice Liability

A person is guilty as an accomplice if he assists or encourages the principal with "dual intents": (1) the intent to assist the primary party, and (2) the intent that the primary party commit the offense charged. Remember a person is not liable for accomplice liability. They are liable for the crime committed through the theory of accomplice liability.

Offer

A person makes an offer when the person communicates to another a statement of "willingness to enter into a bargain" so that the other understands that "his assent to the bargain is invited and will conclude it." The terms of an offer need to be reasonably certain (e.g., as to parties, subject matter, price, etc.).

What is a taking?

A taking can be physical or regulatory (e.g., an exaction). An exaction exists when the government enacts a regulation that restricts the owner's use of a property as a condition to allowing the owner to develop the land. These are takings unless the government can show a legitimate government interest and "rough proportionality" (meaning the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner).

Eviction vs. the implied warranty of habitability

A tenant can sue for constructive eviction (commercial or residential) if the tenant can prove that the landlord breached a duty to the tenant (e.g., the duty to repair) and this breach caused a loss of substantial use and enjoyment of the premises, and the tenant vacated the premises within a reasonable time after giving the landlord adequate notice. This is different than the implied warranty of habitability which is breached only in a residential lease if the premises are uninhabitable. If this occurs, the tenant has a variety of remedies including vacating the premises, suing for damages, offsetting damages from his lease, etc.

Term-of-years lease

A term-of-years lease specifies both a beginning date and an ending date.

Mental Capacity

A testator must have capacity to execute a will. The burden of proving that the testator lacks mental capacity rests on the contestant. A testator meets this requirement if the testator knows (1) the nature and extent of his property, (2) the persons who are the natural objects of the testator's bounty (i.e., family members), (3) the nature of the instrument that the testator is signing, and (4) the disposition that is being made in the will.

Validity of a trust

A trust of personal property is valid if it has a trustee, a beneficiary, and trust property.

Duty of Loyalty - Trusts

A trustee has a duty of loyalty to act in the best interest of the beneficiaries.

Trustee

A trustee manages the trust property and holds it for the benefit of the beneficiaries. Note that a trust will not fail for lack of a specifically-appointed trustee. (The court will appoint one.)

Entire estate portfolio examined to determine prudence

A trustee's investment and management decisions with respect to individual assets should be evaluated in the context of the portfolio as a whole and as a part of an overall investment strategy rather than in isolation.

Admissibility (Rule 403)

All relevant evidence is admissible unless a statute or rule says otherwise, or the probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Pour-over will

A will that makes a gift to a trust is valid so long as the trust is identified in the will and the terms are incorporated in a writing executed before or concurrently with the execution of the will. Under the modern approach, later-made amendments to the trust are valid. Under common law, amendments made after execution of the will are not valid. You are expected to articulate the differences between these two approaches on the MEE.

Witnesses: General Rule

A witness must have knowledge of the matter she testifies about. A lay witness must have personal knowledge. Her opinion must be rationally based on her perception, helpful, and not based on scientific, technical, or specialized knowledge. An expert witness does not need personal knowledge but can instead testify based on facts he has been made aware of at trial or through some other means (e.g., facts not on the record if other experts would rely on them).

Prior statement of identification hearsay exclusion

A witness's prior identification is not considered hearsay.

Executing Will: Incorporation by Reference

A writing that is not valid as a will may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty. This writing must exist at the time the will is executed. (The UPC and some states recognize the right of a testator to dispose of tangible personal property by a signed memorandum, whether it is prepared before or after the execution of the will, even if it does not comply with the formalities of a will.)

Impeachment: General Rule

Any party may impeach a witness (even the party that called the witness).

Child Support Guidelines

All states employ numerical guidelines and establish a rebuttable presumption that the award that results from applying the guidelines is correct. The guidelines must be applied in all cases, regardless of the parents' marital status. The court will look at factors like income and earnings of the parents, the number of children and their ages, and any special needs of the children.

Uniform Prudent Investor Act (UPIA)

Almost all states have adopted a form of the UPIA. The UPIA states that a trustee must "administer the trust as a prudent person would . . . using reasonable care, skill, and caution."

Basic Elements of a Crime

Act, intent, causation, and concurrence.

Three types of notice

Actual, inquiry, record

Modification and Termination of Alimony

Alimony awards may be modified if a court finds there has been a substantial change in circumstances. This must be an unanticipated change. Alimony usually terminates if a spouse dies or gets remarried. In some states, cohabitation will reduce or terminate alimony.

Alimony

Alimony can be permanent, temporary, or granted in a lump sum. Almost all states require the trial court to consider the parties' financial resources and needs, marital contributions, and marital duration. Some states also look at spousal misconduct, one spouse's support for the other's education or training, etc. The trial court has substantial discretion in choosing to award alimony.

Waiver of Duty in LLC

An LLC operating agreement may waive the duty of loyalty (e.g., allow members to open competing businesses) so long as it is not "manifestly unreasonable."

Acceptance

An acceptance is a manifestation of assent to the terms of an offer made in a manner invited by the offer. It is effective upon dispatch (the mailbox rule).

Battery

An act with intent to cause a harmful or offensive contact or imminent apprehension of that contact and a harmful or offensive contact directly or indirectly results. Note that the primary difference between an assault and a battery is the harm suffered (for an assault, the plaintiff suffers imminent apprehension).

False Imprionment

An act with intent to confine or restrain a person to a bounded area, actual confinement occurs, and the plaintiff knows of confinement or is hurt by confinement.

Vicarious Liability of Employer: Respondeat Superior (Remember "SMI")

An employer is liable in tort for the acts of an agent or employee if the agent or employee was acting in the scope of employment, made a minor deviation (a detour) from employment (rather than a frolic), or committed an intentional tort for the principal's benefit, because the principal authorized it, or one that arose naturally due to the nature of employment.

Excited Utterance

An excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused."

Debts: Incoming Partner

An incoming partner is not personally liable for prior debts of the partnership (although his capital contributions can be used to satisfy such debts).

Slayer Statute

An individual who feloniously and intentionally kills the decedent, or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent, forfeits all benefits with respect to the decedent's estate (including an intestate share, an elective share, an omitted spouse's or child's share, etc.). Voluntary manslaughter is a form of a "felonious and intentional" killing. Note that if a beneficiary accidentally kills the decedent (even if it rises to involuntary manslaughter), the slayer rule does not bar a gift. Nor does it apply if the slayer murdered someone other than the decedent. Note: when this is tested on the MEE, this doctrine does not generally bar a gift to the slayer (usually because the killing is not felonious and intentional!).

Voluntary Manslaughter

An intentional killing of a human being without malice aforethought committed in the heat of passion due to adequate provocation.

Rights of a parent when another person wants to adopt a child

An involved parent who demonstrates a "full commitment to the responsibilities of parenthood" will likely be able to successfully oppose an adoption petition by another and is entitled to notice of such proceedings.

Offer to pay medical expenses

An offer to pay medical expenses is not admissible to prove liability or the existence of an injury.

Offer to Settle

An offer to settle is not admissible to prove the validity of a disputed claim.

LLC: Formation, Rights, and Duties

Articles of organization must be filed to create an LLC. Since LLCs are a relatively new form of business association, courts tend to analyze them in the context of corporate or partnership law. Members of an LLC have fiduciary duties. Members of an LLC in a member-managed LLC are treated as agents of the LCC (with actual and apparent authority to bind the LLC in ordinary—but not extraordinary—affairs).

Lawsuits Against Shareholders: Piercing the Corporate Veil

As a general rule, the law treats a corporation as an entity separate from its shareholders, even where one individual owns all of the corporate stock. In some (very limited) circumstances, courts will disregard the limited liability corporate form and hold a shareholder personally liable for corporate debt. To do so is called "piercing the corporate veil." It is only allowed in close corporations and LLCs. Generally, a plaintiff must show that shareholders of the corporation or members of an LLC abused the privilege of incorporating and fairness requires holding them liable. One generally needs to show undercapitalization of the business, failing to follow formalities, commingling of assets, confusion of business affairs, or deception of creditors. Note that only the shareholders or members who participated in the wrong are personally liable.

Limited Partnership (LP)

At least one general partner must be listed on the certificate filed with the state. Limited partners have limited liability (limited to their capital contributions). General partners are liable for all partnership obligations and manage control of the business. If a general partnership converts into an LLP, then partners remain jointly and severally liable for actions that took place before the conversion.

Recording and notice acts

Be aware of the common law first-in-time, first-in-right principle and how the recording acts change that principle. Notice acts are tested frequently on the MEE.

Requirements to Execute a Will

Be aware of the requirements to execute a valid will under majority law. When there does not appear to be a valid will, note different state laws on holographic wills and the dispensing power.

Contract of Sale

Before a deed is delivered, the contract of sale is signed. Under the doctrine of equitable conversion, as soon as the contract is signed (but before closing), the buyer's interest is real property (the land he contracted to buy) and the seller's interest is personal property (money he will get from the sale). Thus, the risk of loss remains on the buyer under a doctrine of equitable conversion, even if the seller remains in possession and control of the land.

When does the father have rights?

Biological fathers generally have rights. However, the state may make the parent exercise his rights within a specific time (e.g., two years).

Merger

On the closing date, the contract for sale merges into the deed, so at that point, the buyer can only sue on the deed.

Character evidence: Civil cases

Character evidence is only permitted when character is an essential element of the case. Character is an essential element in cases involving negligent entrustment or hiring, defamation, and child custody. Reputation, opinion, and specific acts can be used to prove character.

A court may transfer a case to any district court in which it could have been brought if convenience and the "interest of justice" favor a transfer. When a case is transferred to a more appropriate forum under this rule, then the new (transferee) court must apply the laws that the original transferor court would have applied (including their state choice of law rules). Note that the result is different if the case was initially filed in an improper forum and was transferred to a proper forum: in that case, the transferee court would apply its own law, rather than the law of the transferor court, since the transferor court would not have the power to hear the case in the first place.

Change of Venue

General Partnership

Can be formed without a writing or filing certificate. General partnership is the default form; sometimes a general partnership is formed because a limited partnership was improperly formed.

Character Evidence: Civil v. Criminal

Character evidence is generally not admissible to prove conformity. It is rarely admissible in civil cases (it must be an "essential element") and is only admissible in criminal cases when the defendant opens the door.

Character Evidence: General Rule

Character evidence is inadmissible to prove that someone acted in accordance with his character at the time the event occurred.

A claim that has been litigated to a final judgment on the merits cannot be relitigated by the parties (or their privies).

Claim Preclusion

A state must recognize final judgments of other states so long as the judgment is on the merits and the other state had jurisdiction.

Conflict of Law under Full Faith and Credit for Family Law

Personal jurisdiction over both spouses is not necessary to render a divorce decree. The state rendering the decree only needs jurisdiction over the plaintiff spouse. However, personal jurisdiction over both spouses is necessary to issue a binding property division order or support order. (This embodies the concept of a "divisible" divorce decree.)

Conflict of Law under Jurisdiction over Divorce vs. jurisdiction over Spousal Support and property division for family law

A divorce decree must be granted full faith and credit by other states if the court rendering the divorce decree had jurisdiction to enter it.

Conflict of Law under Recognition of Divorce for Family Law

A marriage which is valid under the law of the state in which it was contracted will be valid elsewhere unless it violates a strong public policy of the state that has the most significant relationship to the spouses and the marriage. Some examples of what may violate public policy include incest or polygamy. Examples of what do not violate public policy include blood test requirements, marriage license requirements, and recognition of common law marriage. Common law marriage is virtually always tested when this principle is tested. So, know that if the marriage is recognized by the state where the couple entered into the marriage, it will be recognized by all other states.

Conflict of Law under Recognition of Marriage for Family Law

Channels and Instrumentalities of Interstate Congress

Congress can regulate the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a "substantial effect" on interstate commerce—meaning, it can regulate anything economic or anything noneconomic that "substantially affects" interstate commerce (even if it is purely "intrastate"—that is, within a state).

Congressional Ability to Influence States Through Interstate Regulation

Congress cannot, however, "commandeer" states and force states to enforce federal laws. Congress will either have to regulate directly (if within its commerce power) or regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress's spending power).

How may Congress enforce constitutional rights?

Congress's powers are limited to those given to it by the Constitution. It has the power to "enforce" constitutional rights under its enforcement power found in the Thirteenth, Fourteenth, and Fifteenth Amendments, but it does not have the power to expand rights.

Consent

Consent is a defense to an intentional tort. Consent can be express or implied.

Consideration

Consideration is a "legal detriment" or "bargained-for-exchange." A promise to make a gift does not constitute consideration.

Four categories for goods

Consumer goods, inventory, equipment, and farm products

Farm products

Crops, livestock, supplies produced in a farming operation or products of crops or livestock in their unmanufactured state in possession of debtor who is engaged in a farming operation.

Custody Modifications

Custody can be modified only if there is a substantial change in circumstances. Generally, this change must be unforeseen at the time of the initial judgment.

Third-Party rights in children

Custody in the parent is presumed to be in the best interest of the child. To rebut this, a third party who wants custody must prove that the parent is unfit or that granting custody to the parent would be highly detrimental to the child. Thus, any third-party visitation or custody statute must give special weight to the parent's determination of the child's best interest.

Custody Determinations of the Child

Custody is determined by looking at the best interest of the child.

Removal Under 1441

Defendants (but not plaintiffs) may remove an action from state court to the federal court that geographically embraces it if the plaintiff could have initially brought the case in federal court. Generally, if the plaintiff could not have brought the case in federal court, then the defendant cannot remove it either. Note: A defendant may not remove a case if he is sued in his home state and the only basis for removal is diversity. (This exception is not generally tested on the MEE.)

Licensee

Definition: a social guest who has permission to enter the land but does not confer an economic benefit on the possessor of land. Rule: the landowner must warn or make safe all concealed dangers (artificial or not, unreasonably dangerous or not) that the landowner knows of. ***Note: Most MEE answers state that a premises possessor owes a licensee the duty to "reveal hidden dangers of which the landowner knows or has reason to know and which the entrant is unlikely to discover." (This is very similar to the invitee standard, below, but you should state it on the MEE.)

Discovered Trespasser

Definition: a trespasser that the premises possessor knows or should know of. Rule: the possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of.

Hearsay Approach ("DIA")

D: Define Hearsay, I: State why it is important to determine if a statement is hearsay, A: Analyze exceptions

Remedy: Damages

Damages (including consequential damages, but the debtor has a duty to mitigate). If the collateral constitutes consumer goods, statutory damages are awarded.

Remedies if secured party fails to provide written notification or the sale is not commercially reasonable

Damages, sale, or rebuttable presumption (nonconsumer transaction v. consumer transaction)

True threats or words as conduct

Defamation, harassment, and other forms of "words as conduct."

Undiscovered Trespasser

Definition: one who comes onto the land without permission or privilege who the premises possessor does not know about. Rule: undiscovered trespassers are not owed any duty of care.

First thing you do on a contracts essay

Determine is UCC Article 2 (Sale of Goods) or common law (services) applies. STATE WHY UNDER PREDOMINANT PURPOSE TEST.

A duty of loyalty issue arises in three ways (mnemonic = "BCC"): Corporation

Director is on both sides of a transaction: a director has a material financial interest in a contract, as well as knowledge of that interest, yet still votes to approve the contract. Competes with corporation: a director may not compete with his corporation. Corporate opportunity: a corporate officer may not usurp a corporate opportunity.

Directors

Directors manage the corporation and (like shareholders) act as a body by voting. Shareholders hire and fire directors. Directors cannot vote by proxy or agreement. A quorum (majority of directors) needs to be present for a vote to take place, but unlike shareholders, directors can "break quorum" by leaving. Notice is only required for a special meeting.

Disclaimers

Disclaimed property (property that a beneficiary does not want) will pass as if the person disclaiming had failed to survive the testator. An antilapse statute may apply; otherwise, the gift will fall into the residuary.

Negligence per se

Discuss this doctrine when you see a statute that sets the standard of care on a Torts question. A plaintiff can sue under a theory of negligence per se when the plaintiff can show three elements: (1) the defendant violated a statute without excuse, (2) the plaintiff was in the class of people that the statute was trying to protect, and (3) the plaintiff received the injury that the statute was trying to prevent. If a plaintiff can establish the above elements, he has offered conclusive proof of duty and breach. (He must still prove cause and harm.)

Dissolution of Partnership

Dissolution does not end a partnership, it ends once winding up is complete.

(1) There must be complete diversity of citizenship between the plaintiffs and defendants, and (2) the amount in controversy must be over $75k

Diversity Jurisdiction Requirements

Divorce: Wills

Divorce revokes gifts in favor of a spouse. Note: there actually needs to be a divorce (or annulment)—not just a filing of divorce.

At the time the lawsuit is filed, a person is domiciled where it is their permanent home, a place where the person intends to remain indefinitely, and the place to which the person intends to return when temporarily absent.

Domicile Rule for Person

Easement Creation

Easements can be created expressly, impliedly (by prior use or necessity), or by prescription.

What is appealable?

Final judgments are generally appealable and non-final judgments are generally not appealable. However, the MEE tends to test the exceptions!

The government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest. (The government usually loses under a strict scrutiny analysis.) Strict scrutiny applies to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the state (though there are exceptions for alienage where strict scrutiny does not apply—e.g., if the public function doctrine applies or if the law regulates illegal aliens).

Equal Protection Clause: Strict Scrutiny

Relevancy

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

Inquiry notice

Examination of the land or reference in an instrument would lead a reasonable person to inquire.

Actual authority: Two Kinds

Express and implied authority.

Partners: Co-Managing Extraordinary Measures

Extraordinary matters require a unanimous vote (such as admitting a new partner or selling land).

A valid Miranda Invocation

For both the right to remain silent and the right to counsel, the suspect must be explicit, unambiguous, and unequivocal in making the request (e.g., "I think I need a lawyer" is not enough).

("HELP"): (1) harm: the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted, (2) evaluation of injuries: the balance between this harm and the injury that granting the injunction would inflict on the defendant, (3) likelihood of prevailing: the probability that the plaintiff will succeed on the merits, and (4) the public interest.

Four Factors to Consider for Preliminary Injunction

Conflict of Laws: Family Law Areas

Full Faith and Credit, Recognition of Marriage, Jurisdiction over divorce vs. jurisdiction over spousal support and property division, recognition of divorce, and state law governing premarital agreements.

Promise to Hold Offer Open

Generally, an offer may be revoked before acceptance. A promise to hold an offer open requires consideration in order to be binding (unless the UCC "firm offer" exception applies).

Character Evidence: Criminal Cases

Generally, character evidence is inadmissible in the prosecutor's case-in-chief to prove that the defendant acted in conformity with his own character. However, the defendant in a criminal case may introduce evidence of a pertinent (relevant) character trait to prove that he acted in conformity with his character at the time in question. He can do this by reputation or opinion. Then, the prosecutor may rebut by using reputation, opinion, or cross-examining the defendant's witness by asking about specific acts.

Termination by beneficiaries after settlor dies

Generally, even an irrevocable trust can be terminated if both the income beneficiaries and the remaindermen unanimously consent and if there is no material purpose of the trust yet to be performed. Claflin v. Claflin

LLC: Liability

Generally, individual members are not liable for losses. They are liable if the court decides to "pierce the LLC veil" or if proper procedures for dissolution and winding up have not been followed. (Creditors may enforce claims against each of the LLC members. However, a member's total liability may not exceed the total value of assets distributed to the member in dissolution.)

Consumer Goods

Goods that are bought for use primarily for personal, family, or household purposes (e.g., a computer in the hands of a consumer).

Inventory

Goods, other than farm products, that are held by a person for sale or lease to be furnished under a contract of service; or raw materials, work in process, or materials used or consumed in a business (e.g., computers sold by a computer store).

Equipment

Goods, other than inventory, farm products, or consumer goods (e.g., a computer used in a business).

Sixth Amendment Confrontation Clause

If a statement is testimonial, the declarant is unavailable, and the defendant did not have the opportunity to cross-examine the declarant, then admission of the statement will violate the defendant's right to confrontation. Note: a statement is not "testimonial" if the primary purpose of the statement is to address an ongoing emergency.

If you see a gift to a class in a Wills question

If a testator gives a gift to a group of unrelated individuals and one predeceased him, the deceased would not take, and neither would his descendants, unless the antilapse statute saved the gift.

Define Hearsay

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

State why it is important to determine if a statement is hearsay

Hearsay is not admissible unless it comes within an exception.

Executing a Will: holographic Wills

Holographic wills are unwitnessed wills. Holographic wills are valid if signed and (according to the UPC and some states) if the material portions are in the testator's handwriting. Holographic wills are recognized by about half the states. Mention this doctrine if you see an unwitnessed will on the MEE.

Emergency jurisdiction or default jurisdiction

If no other state has or exercises jurisdiction, this test applies.

Fourth Amendment: Plain View Exception

If officers are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to it, they may seize it without a warrant.

Revocation of acceptance of goods

If a buyer accepts the goods, he can no longer reject them. However, in certain circumstances a buyer can "revoke his acceptance" of the goods. The buyer can do this when: (1) the nonconformity substantially impairs the value to him; (2) he accepted the goods because he had a reasonable belief that the nonconformity would be cured (and it was not), or he did not discover the nonconformity because the nonconformity was difficult to discover, or because of the seller's assurances; (3) he revokes within a reasonable time after he discovers or should have discovered the nonconformity; and (4) he revokes before any substantial change in condition of the goods which is not caused by their own defect. A buyer who revokes acceptance of goods may recover the purchase price that has been paid.

The "significant connections" test

If a child has no "home state,"a state may exercise jurisdiction based on (1) "significant connections" with the child and at least one parent and (2) the existence of "substantial evidence" relating to child custody in the forum jurisdiction.

Choice of Law Clause in A Contract Claim

If a contract specifies the state law that it will be governed by, generally that law will apply. The Restatement provides that the law chosen by the parties will be applied unless (1) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice or (2) application of the law of the chosen state would be contrary to a fundamental policy of a state that has a materially greater interest than the chosen state in the determination of the particular issue and that under a "most significant relationship" test would be the state of the applicable law in the absence of an effective choice of law by the parties.

Creditor Claim Against Partner

If a creditor has a claim against a partner, the creditor can claim an interest in the partnership. This includes profits but not management or voting rights.

Creditor Claims Against Partnership

If a creditor has a claim against the partnership, the creditor can try to collect from the individual partners.

Default (Secured Transaction)

If a default occurs, the lender can demand payment or use self-help to reclaim the goods so long as it does not breach the peace.

LLC: Dissociation

If a member leaves, then it leads to dissociation of that member, but it does not lead to winding up or dissolution unless the other members unanimously agree to dissolve the LLC.

Which court determines child custody and support

If a parent wants to acquire jurisdiction over a nonresident parent for child support or custody, then she most show that the state has jurisdiction over the nonresident parent (e.g., minimum contacts).

Suing the State: General Rule

If a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech, due process, Equal Protection Clause issues, or voting rights) the plaintiff needs to find a government actor or action "fairly attributable to the government." (One cannot sue a business or a private individual for, say, violating one's free speech rights under the First Amendment.)

Ratification

If a principal ratifies the acts (and thus becomes liable) by expressly or impliedly affirming or accepting the benefits of the act, so long as the principal knew the material facts and had capacity.

State of mind hearsay exclusion

If a statement is offered to show state of mind and not truth, it is not hearsay.

Confessions on an Essay

If the essay tests confessions, be able to distinguish between the Fourteenth Amendment, Sixth Amendment, and Fifth Amendment, as well as when the rights under those Amendments attach. Know that anything other than an unequivocal request for counsel will not be sufficient to invoke one's Fifth Amendment Miranda rights. Also note that officers are virtually never required to tell the defendant that a lawyer is trying to contact him. These points have been emphasized on past MEE questions.

State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state's long-arm statute and the due process clause of the Fourteenth Amendment of the U.S. Constitution.

If the issue is specific jurisdiction, state:

Assignment

If the lease does not prohibit an assignment or sublease, a tenant can assign or sublease her interest in the lease.

Market Participant Doctrine

If the state is acting as a market participant, it is allowed to favor its own residents.

Contradiction

If the witness made a mistake in her testimony or lied during direct examination, she may be contradicted. Extrinsic evidence can be used if she does not admit her mistake.

Remedy: Rebuttable Presumption: Nonconsumer transaction

If there is a failure to comply with these requirements and the secured party fails to show that the sale was commercially reasonable, then there is a rebuttable presumption that the collateral is worth the amount of the debt and the debtor's deficiency is nothing.

Marital Property: Division by Court

In a majority of states, marital property is divided at divorce but separate property remains the property of the owning spouse.

Beneficiary

In a private express trust, beneficiaries must be definite and ascertainable. Further, the same person cannot be the sole trustee and sole beneficiary or the trust collapses.

Self-Dealing Case

In a self-dealing case, the trust beneficiaries may rescind the transaction and ask for the self-dealing purchase to be set aside (the trust property is returned to the trust and the amount paid is refunded by the trust) or recover any profits the trustee made by reason of the breach.

General Power of Appointment: Majority View

In most states, a general residuary clause in a will ("I give all of my estate . . . ") does not exercise a power of appointment. However, if the general residuary clause is coupled with a "blanket exercise" clause (e.g., "including all property over which I have a power of appointment"), any power of appointment held by the donee is exercised, unless the donor of the power specifically requires reference to it.

Content of Notification

In nonconsumer transactions, the notification of disposition should describe the debtor and the secured party and the collateral, state the method of disposition, state that the debtor is liable for unpaid indebtedness as well as a charge for accounting. In consumer transactions, the notification must additionally contain a description of any liability for a deficiency, a telephone number that the consumer can call to discover the amount owed, and a telephone number or mailing address from which the consumer can get additional information about the disposition and the obligation.

Shareholder Voting

In order for a resolution to pass, there needs to be a quorum present, and more votes must be cast in favor of the resolution than against it.

Modification of Child Support

In order to obtain a modification of a future support obligation, the petitioner must show a substantial change in circumstances. (If the change is a reduction in income, and it was voluntary, some courts will not modify it; some will under a multi-factor test—e.g., examine if the party acted in good faith, among other factors.) Child support cannot be modified retroactively unless there was fraud or other compelling circumstances.

Adverse Possession: Tacking

In some circumstances, an adverse possessor may "tack on" the time that a prior adverse possessor had possessed the land to his own time to reach the statutory period.

Appealable Exceptions

Include when there are final orders in cases involving multiple claims and multiple parties and some are still pending—the other parties may be able to appeal their orders; orders involving injunctions, garnishments, and other temporary remedies; interlocutory orders by leave; and orders constituting a final judgment on collateral matters.

Indemnification: Torts

Indemnification is full reimbursement for damages paid to the plaintiff. This is when one defendant can seek 100% of the damages from the other defendant. This usually occurs when the paying defendant was not at fault in causing the plaintiff's injuries, and the non-paying defendant was at fault. For example, an employer who is liable based solely on the principle of respondeat superior may seek indemnification from the employee who was negligent.

Intestate Succession

Intestate succession explains how property is divided if a person dies without a will (or if the will is invalidated in part or in whole or does not make a total disposition). It is frequently tested on the MEE. If the decedent's spouse and parents do not survive the testator, there are two available schemes to divide property among the decedent's children: per capita at each generation (where all cousins will be treated alike!) or per capita with representation ("modern per stirpes") where a child will simply take his parent's share.

Issues that were actually litigated and decided and essential to the judgment in a previous case cannot be litigated again.

Issue Preclusion

How to determine if there is implied actual authority

It can be implied by custom, past course of conduct by the principal, necessity, or an emergency circumstance.

A federal district court sitting in diversity must apply the choice of law prevailing in the state in which it sits.

Klaxon Doctrine

Selling Collateral subject to a collateral interest

Know what happens when a debtor sells collateral subject to a security interest or if a judicial lien creditor acquires an interest. Be able to identify that a buyer in the ordinary course of business generally does not take the collateral subject to the security interest, whereas a buyer not in the ordinary course of business generally does (unless the interest was not perfected and he does not otherwise know about it).

Executing a Will: General Will

Many state laws require that the will is in writing, signed by the testator, and witnessed by two witnesses. They also require that the testator is 18 or older and intend that the document is his will. Note: generally, any mark that is made with intent to adopt the will counts as a signature.

Marital vs. Separate Property (majority approach)

Marital property is property acquired during the marriage. Separate property includes (mnemonic = "BIG") property acquired before the marriage, an inheritance, or a gift to one party. Most states do not count professional degrees earned during the marriage as marital property.

Advancements: Majority Law

Most states today say that a lifetime transfer is presumed to be a gift and is ignored in computing the heir's intestate share unless there is evidence to show that the decedent intended the gift to be an advancement.

FRCP 56(a) allows a summary judgment motion to be granted only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. This motion may be supported by depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.

Motion for Summary Judgment Rule

Consent and Control

Must be present to find an agency relationship

Offer, acceptance, and consideration.

Needed to form a contract.

Eminent Domain

Neither the federal government nor the state may take private property for public use without just compensation. This arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.

The Due Process Clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice." Look for "purposeful availment" of the benefits and protections of the state.

Next statement on a specific jurisdiction question.

Limited Liability Partnership (LLP)

No partner is personally liable for the obligations of the partnership (but partners are liable for their personal torts).

Punitive Damages

Note that punitive damages are not generally recoverable as an element of damages in a breach of contract action "unless the conduct constituting the breach is also a tort for which punitive damages can be recovered."

Three Kinds of Recording Acts

Notice acts, race notice acts, and pure race acts.

General jurisdiction

Obtained by consent, presence, and domicile.

Ratification: When does it occur?

Occurs in situations where even though the agent did not have authority to enter into a transaction, the principal becomes liable by accepting it.

Partnership: Profit Sharing

Profit-sharing creates a presumption that a person is a partner unless the profits were received in payment of a debt, rent to a landlord, wages, etc.

Race notice acts

Protect subsequent bona fide purchasers for value who take without notice and are the first to record. (E.g., "No conveyance of an interest in land is valid against any subsequent purchaser for value without notice unless it is first recorded.")

Notice Acts

Protect subsequent bona fide purchasers for value who take without notice of the earlier transaction. (E.g., "A conveyance of interest in land is not valid against any subsequent purchaser for value without notice unless it is recorded.")

Pure Race Acts

Protect subsequent purchasers who are first to record. (These are rare!)

Duty of care - Trusts

Prudent Administration

"Bad Acts"

Questioning about acts that are probative of truthfulness or untruthfulness (e.g., filing a false tax return) is permitted. Extrinsic evidence is not permitted. Note that on both exams, the question was whether a party could admit extrinsic evidence that the witness lied on a job application or resume (and the answer is that extrinsic evidence would not be permitted).

Requirements for Adverse Possession

Requirements for adverse possession include possession that is (mnemonic = "CHANGE"): (1) continuous, (2) hostile and under a claim of right, (3) actual, (4) open and notorious, (5) goes on for the statutory period, and (6) exclusive. One only acquires title to the area one actually possesses (unless there is color of title, a unitary tract, and possession of an amount that is reasonable in relation to the whole—in which case, the adverse possessor can acquire the whole tract).

Criminal Law: Causation

Requires showing that the defendant's acts were both the actual and proximate cause of the outcome. Proximate cause is present if the outcome was foreseeable.

Statute of Frauds: Common Law

State: "A contract within the Statute of Frauds satisfies that statute and is enforceable if it is evidenced by a writing signed by 'the party to be charged,' which (1) reasonably identifies the subject matter of the contract, (2) is sufficient to indicate that a contract has been made, and (3) states with reasonable certainty the essential terms of the contract." Contracts that are within the statute include contracts for the sale of an interest in land, contracts that cannot be performed in a year, contracts made in consideration of marriage, promises by an executor to pay a debt of an estate out of his personal funds, and suretyship contracts.

Dormant Commerce Clause or Negative Commerce Clause

States lack the power to discriminate against interstate commerce or unreasonably burden it.

When states regulate interstate commerce in the absence of congressional regulation, one of two tests is used to determine if the state law is constitutional. If the law is discriminatory, it is usually unconstitutional under a strict scrutiny standard. If it is merely a "burden" on interstate commerce, it is more likely to be constitutional.

States regulating interstate commerce

Generally, a court will apply its own procedural laws even if the substantive laws of another state are applied to the case. A statute of limitations is generally considered procedural. Generally, a court applies its own statute of limitations unless the claim would be barred by the law of the state with a more significant relationship to the parties.

Statute of Limitations

Strict Scrutiny: First Amendment

Strict scrutiny means that the government must show that the regulation is necessary to serve a compelling state interest and is narrowly tailored to that end.

Speech in Public Schools

Students have free speech rights; however, speech in schools may be regulated so long as the regulations are reasonably related to legitimate pedagogical (educational) concerns.

Analyze Exceptions

Such as excited utterance, present sense impressions, statement for purpose of medical treatment or diagnosis, business records, recollection recorded, state of mind hearsay exclusion, prior statement of identification hearsay exclusion, and opposing party's statement.

The Home state test

The "home state" has exclusive jurisdiction to modify a custody decree. A "home state" is a state where the child has lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding. A home state continues to have exclusive jurisdiction to issue a custody order for six months after a child leaves the state, so long as a parent, or person acting as a parent, still lives in the home state.

What does the Eleventh Amendment preclude?

The Eleventh Amendment precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state. There are exceptions to this (e.g., if a federal statute properly abrogates immunity).

Fourth Amendment: General Rule

The Fourth Amendment applies to searches or seizures conducted by government agents in areas where the complaining individual has a reasonable expectation of privacy. An agent usually needs a warrant. However, there are many exceptions, including exigent circumstances, search incident to arrest, consent, the automobile exception, plain view, inventory searches, special needs, and Terry stops.

Fourth Amendment: Terry Stops and Frisks

The Fourth Amendment permits detention of an individual for a brief period of time if the police have "reasonable, articulable suspicion" that the individual has been recently involved in criminal activity.

Defenses to Liability for Breach of Duty of Loyalty

The Revised Model Business Corporation Act includes three safe harbors that may protect a director who breaches his duty of loyalty: (1) approval by disinterested directors (if all relevant information is disclosed), (2) approval by disinterested shareholders, or (3) if the transaction is judged to be fair at the time it was entered into.

Sixth Amendment: Right to Counsel

The Sixth Amendment, as applied to the states through the Fourteenth Amendment, provides that the accused has the right "to have Assistance of Counsel for his defense." It attaches when judicial proceedings have begun—that is, when the accused is formally charged via indictment, arraignment, preliminary hearing, etc. It does not attach upon arrest. It applies to all "critical stages" of the prosecution after formal charges are filed. Once it attaches, any attempts to deliberately elicit an incriminating statement about the offense that the defendant was charged with, in the absence of counsel or a knowing, intelligent, and voluntary waiver, violates the Sixth Amendment.

Executing Will: Dispensing Power

The UPC adopts the "dispensing power" under which a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will.

UPC Approach to Class Gifts

The UPC states that when a class gift is made, each living beneficiary will take their share and the deceased beneficiary's share will pass to their surviving descendants. (If there are no surviving descendants then the gift will fail.) Note: this applies even if the beneficiary is not related to the settlor (and thus differs from most antilapse statutes).

Child Custody Order

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies. This is divided into a few tests: the home state test, the "significant connections" test, emergency jurisdiction or default jurisdiction.

Child Support

The Uniform Interstate Family Support Act (UIFSA) governs child support. This Act has been adopted by all states. Once an order is registered, it may be enforced by any state. The state that originally issued a child support order has continuing exclusive jurisdiction to modify that order if the state remains the residence of the obligee, the child, or the obligor, and at least one of the parties does not consent to the jurisdiction of another forum.

Special (or limited) power of Appointment

The class of people that the beneficiary can exercise the power in favor of is limited. A special testamentary power needs to be specifically exercised. The Uniform Probate Code (UPC) adopts a "substantial compliance" rule which says that if it could be shown that the powerholder intended to exercise a power, a blanket-exercise clause may be sufficient.

General Power of Appointment

The class of people that the beneficiary can exercise the power of appointment in favor of is unlimited (she can use it for herself, her creditors, or someone else).

Which Court May Dissolve a Marriage

The court does not need jurisdiction over both spouses to terminate a marriage. If the plaintiff spouse is domiciled in the forum state or if the state has some other equivalent long-term connection between at least one of the parties to the marriage, then that court has jurisdiction to dissolve the plaintiff's marriage.

Debtor's right to redeem

The debtor can redeem prior to the disposition of the collateral by paying everything due and owing to the creditor.

Involuntary Manslaughter ("misdemeanor manslaughter")

The defendant causes the death of another human being by engaging in conduct that creates an unreasonable risk of death or serious bodily injury. The majority view is that the defendant must have acted "recklessly." Some states say that "gross negligence" is enough.

Defense: Duress

The defendant performs a crime because there was a threat or use of force by another which caused a reasonable fear that, if the defendant did not perform the crime, either he or a third person would suffer imminent death or serious bodily injury. One cannot use duress as a defense to an intentional homicide.

Federal Question Jurisdiction

The federal question must appear on the plaintiff's well-plead complaint. It cannot appear in the answer; further, the plaintiff cannot merely anticipate a federal defense in its complaint. (On the MEE, this has virtually always been tested with personal jurisdiction. And, the issue has always been the well-plead complaint rule!)

Attachment: After-acquired property

The general rule is that a security agreement can cover after-acquired property and does not need to specifically reference it to be effective.

When a gift fails because the beneficiary is not alive

The general rule is that if a beneficiary does not survive the testator, the gift will "lapse" or fail and fall into the residuary. However, all states have antilapse statutes (which keep gifts in the family). Under a typical antilapse statute, if a beneficiary dies before the testator and was both related by blood to the testator within a certain degree of relationship and had issue who survived, the gift to the deceased beneficiary is "saved" and the beneficiary's issue will take in lieu of the beneficiary.

When a lien creditor is involved

The general rule is that, as between a secured party and a lien creditor, priority belongs to the secured party, provided it perfects before the lien arises. If the interest was unsecured or only perfected after the lien creditor served the writ, then the lien creditor has priority.

When does the government face strict scrutiny in First Amendment Cases?

The government faces strict scrutiny if it engages in content-based discrimination (forbidding communication about certain ideas) or viewpoint based discrimination (forbidding communication about a certain viewpoint).

Actual Notice

The grantee actually knows about the conveyance.

Quitclaim deed

The grantor gives no covenants (promises nothing) and the grantee gets whatever the grantor has. The grantee takes the land subject to a defect in the title, an undisclosed easement, or other problem, and has no recourse.

Warranty deed

The grantor gives six covenants—three present covenants and three future covenants. The MEE tends to test present covenants rather than future covenants. The present covenants include (mnemonic = "PRESENT"): the right to convey, the covenant of seisen (both of these essentially meaning that the seller guarantees he owns the land he is selling), and the covenant against encumbrances ("no encumbrances"—that is, there are no existing easements, liens, or encumbrances that are not stated in the deed). Future covenants include (mnemonic = FEW): further assurances, quiet enjoyment, and warranty. Under the common law, remote grantees can sue only under future (not present) covenants. However, note in your answer that some jurisdictions do not follow the common law rule.

First-Degree Murder

The intent to kill with premeditation and deliberation

Record notice

The interest is recorded in the chain of title. Deeds that are recorded too late or too early are wild deeds. Wild deeds do not give notice.

Retracting a repudiation

The party who has repudiated can retract his repudiation unless the other party cancelled the contract, materially changed his position in reliance on the repudiation, or indicated that she considers the repudiation to be final.

Conflict of Law: Personal Property of Decedents' Estate

The postmortem distribution of personal property is governed by the law of the state in which the decedent was domiciled at the time of his death.

Conflict of Law: Real Property of Decedents' Estate

The postmortem distribution of real property is governed by the law of the situs (i.e., where the property is).

Attractive nuisance

The premises possessor is liable if (1) he knows or has reason to know that children are likely to trespass, (2) the condition is one which he knows or should know involves an unreasonable risk of death or serious bodily harm, (3) the children, because of their youth, do not discover the condition or realize the risk involved, (4) the burden of eliminating the danger is slight as compared with the risk involved and the benefit to the possessor, and (5) the possessor fails to exercise reasonable care to protect the children. This doctrine applies only if the child is engaging in an activity appropriate for children (i.e., not an "adult activity").

Rights of the Press

The press has no greater free speech rights than anyone else. The press may publish information that is lawfully obtained and that is a matter of public concern.

Indemnification

The principal can recover against the agent for indemnification if the agent acts beyond their authority.

Direct Liability of Principal

The principal is directly liable for his own negligence if he negligently hired the agent, failed to fire the agent, or failed to properly supervise the agent.

A Valid Miranda Waiver

The suspect must make a "knowing, intelligent, and voluntary" waiver. This is a low bar.

Duties of a tenant

The tenant must pay rent. If the tenant does not pay rent but has abandoned the property, the landlord can sue the tenant for damages or treat it as a "surrender" (the latter excuses future rent obligations).

Obscene speech

The test for obscenity examines whether the speech appeals to a prurient interest in sex, whether it depicts or describes sexual conduct in a patently offensive way, and whether it lacks serious literary, artistic, political, or scientific value. Obscene speech is not usually tested.

Comparative Negligence -- Majority Law

The trier of fact (that is ,the judge or jury) apportions fault among the parties. The amount of damages apportioned to the plaintiff because of the plaintiff's negligence is subtracted from the total damages awarded by the jury. This is known as pure comparative negligence. There are some jurisdictions in which apportionment is not available unless the jury concludes that the plaintiff is less than 50% at fault. In these "partial" or "modified" comparative negligence jurisdictions, if the jury concludes that the plaintiff was 50% or more at fault, he cannot recover. (MEE sample answers do not typically name the doctrines "pure" or "partial"; they simply describe them.)

Termination

The true end of the partnership.

Discretionary Trust

The trustee has discretion to decide when to make a distribution to a beneficiary. The beneficiary cannot demand any part of the income or principle. Nor can a creditor, unless it shows the trustee acted dishonestly or in a state of mind "not contemplated" by the settlor. (There is an exception under the Uniform Trust Code for child support or alimony.)

Support trust

The trustee must pay what is necessary for the beneficiary's support.

Intentional Torts on the MEE

The two intentional torts that have been tested on the MEE are battery and false imprisonment. Intentional torts are not heavily tested.

Reputation or opinion for untruthfulness

The witness cannot testify to specific facts. (Extrinsic evidence is permitted because the witness is extrinsic evidence.)

Bias and Interest

The witness must be confronted on the stand. Extrinsic evidence can only be used if the witness is asked about the bias first.

Breach of Peace

There are several factors to examine to determine if the lender has breached the peace, including whether the repossession took place at the debtor's premises and whether the debtor objected. Some courts also look at whether trickery was used. Some courts say that any objection (even if slight and even if only verbal) amounts to a breach of the peace.

Spendthrift Trust: Right of Creditor Exception

There are some favored creditors that are exceptions to the general rule:(1)a child or spousal support creditor (for maintenance and support), (2) a judgment creditor who has provided services for the protection of a beneficiary's interest in the trust (e.g., a lawyer), (3) a claim of the state or United States (usually for taxes), and (4) creditors with claims for necessaries in some states (this fourth category is not recognized in states that follow the Uniform Trust Code).

Remedy: Rebuttable Presumption: Consumer Transaction

There are two approaches that courts follow: the absolute bar rule (the creditor's noncompliance bars any recovery of deficiency) or the rebuttable presumption rule.

Covenants in the deed

There are two kinds of deed on the bar: quitclaim and warranty deed.

Principles to keep in mind: First Amendment

There is a presumption against a prior restraint (stopping speech before it happens). If a law is overbroad (prohibits substantially more expression than necessary) or vague (a reasonable person could not tell what is prohibited by the law), it is unconstitutional.

Duty of Care -- Business Judgment Rule

There is a presumption that, "in making a business decision, the directors acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interest of the company." Directors must be informed to an extent that they reasonably believe is appropriate. They are entitled to rely upon information, opinions, reports, or statements of corporate officers, legal counsel, public accountants, etc., in making a decision. A party claiming that the directors breached their duty of care has the burden of proof.

Winding Up

There is where the partnership assets are liquidated and creditors are paid. Note that partners are still liable for any liabilities that occur during the winding up phase.

Prior inconsistent statements

These can be used as substantive evidence as well if they fall within a hearsay exception or exclusion. The witness must be given the opportunity to explain or deny the statement if extrinsic evidence is used, unless the witness is the opposing party, not in court, or if the interests of justice so require.

Statement for Purpose of Medical Treatment or Diagnosis

These statements must be made for and reasonably pertinent to medical diagnosis or treatment and describe medical history, past or present symptoms or sensations, their inception, or their general cause.

Partners in a Partnership

They are agents and co-managers of the partnership.

Intestate Succession: Advancements

This is an issue when the decedent dies without a will but gave a child a gift during her lifetime. The question is: Should the gift be deducted from what the child would inherit under the laws of intestate succession?

Supplemental Jurisdiction

This is an issue when there is a jurisdictional basis for one claim but not the other (e.g., a plaintiff brings a "federal question" claim and tacks on a related state claim). Remember that a plaintiff cannot use supplemental jurisdiction to add a claim against a non-diverse party if the sole basis for SMJ is diversity.

Timeliness of Notification

This is generally a question of fact, but in a nonconsumer transaction, a notification sent 10 days or more before the disposition (sale) is considered reasonable.

Subsequent Remedial Measures

This is not admissible to prove negligence or liability, but may be used for impeachment, or to prove ownership, control, or feasibility of precautionary measures if disputed.

Duty to diversify

This is one of the hallmarks of prudent investing. The trustee is not liable for declines in value due to a downturn resulting from general economic conditions—but is liable for failure to diversify absent directions to the contrary.

Undue Influence

This is present when the wrongdoer exerts such influence over the testator that it overcomes the testator's free will and causes the testator to make a gift that he would otherwise not have made. The burden of establishing undue influence is generally on the will contestant who must show the following (mnemonic = "SODA"): (1) the testator was susceptible to undue influence, (2) the alleged influencer had the opportunity to exert undue influence, (3) the alleged influencer had a disposition to exert undue influence, and (4) the will appears to be a product of undue influence. Most courts only invalidate portions that are "infected" by undue influence.

Second-Degree Murder

This is satisfied by the intent to inflict great bodily harm or by acting with reckless disregard of an extreme risk to human life ("depraved heart" murder). (Note it is also the "catch all"—that is, when an act constitutes "murder" but is not quite first-degree.) Note that the requirement for "depraved heart" murder usually requires that the defendant acted recklessly and that the defendant's conduct shows a "high degree of indifference to the value of human life."

Sensory Deficiencies

This is the ability to observe, remember, or relate accurately. Extrinsic evidence is permitted.

Per capita with representation ("modern per stirpes")

This is the same as above except instead of combining all shares and dividing them equally, simply pass each deceased person's share on to her issue(s). (Cousins may not be treated alike.)

Negligent Infliction of Emotional Distress

This may be applicable when the defendant is negligent and the plaintiff has not sustained any actual physical trauma to his body. There generally must be a physical manifestation of emotional distress (e.g., heart attack). Some jurisdictions only allow recovery if the plaintiff was "within the zone of danger." Others allow it when the plaintiff was closely related to the victim, was located near the scene of the accident, and suffered shock resulting from "the sensory and contemporaneous observance of the accident." In almost all jurisdictions, mere receipt of news relating to an accident does not suffice.

Revocation by Physical Act (e.g., by execution of a new will or by some other physical act, such as cancellation or other writings on the will)

This must be done with the intent to revoke the will. The testator or someone acting at the testator's direction and in his "conscious presence" may revoke the will.

Prospective inability to perform

This occurs when a party has reasonable grounds for insecurity that the other party is unable or unwilling to perform. This is merely doubt, it does not rise to the level of an anticipatory repudiation. Under the UCC, the party may then, in writing, demand adequate assurance of performance, and until she receives such assurance, may suspend her performance. If such assurance is not given within a reasonable time, not exceeding 30 days, the other party may treat it as a repudiation.

Anticipatory repudiation

This occurs when there is an unequivocal manifestation by one party to the other that the party cannot or will not perform its obligations under the contract (a mere expression of doubt is not enough) and this statement is made before the repudiating party's performance is due. The other party may wait for a reasonable time for performance or resort to any remedy for breach of contract.

Validity of Deed

To be valid, a deed must identify the buyer and the seller, describe the land, contain words denoting a present intent to convey, and be signed by the grantor. It must also be delivered. Delivery is a question of intent to pass title presently.

Per Capita at each generation

To decide who gets the shares of the estate, find the first generation where there are issue living. Give one share for each such living issue and one share for each person in that generation who predeceased the decedent but left issue surviving. Combine the shares belonging to the deceased persons and distribute them equally at the next generational level. (Cousins are treated alike.)

Common law marriage

To establish a common law marriage, the proponent must show (mnemonic = "CACH"): capacity to enter into a marital contract, a present agreement to be married, cohabitation, and "holding out" a marital relationship.

Proving Attempt

To prove attempt, the prosecution must prove two elements: (1) the defendant intended to commit the crime, and (2) the defendant's acts went sufficiently beyond "mere preparation" to commit the crime. (The common law uses the words "dangerously close" to the crime, whereas the Model Penal Code requires that the defendant's conduct is a "substantial step" toward the crime and corroborative of his criminal intent.) In most states, abandonment is not a defense to attempt.

Trust property (trust res)

Trust property must be identifiable

Public Safety: Miranda

Warnings are not required if the questions are intended to protect public safety (e.g., to secure weapons after a shooting).

The quality of the contacts with the state.

What are you looking for in a specific jursidiction question?

Need State Action

What is required to sue under the First, Fourteenth, or Fifteenth Amendments?

Federal question jurisdiction, diversity jurisdiction, and supplemental jurisdiction

What three categories of SMJ are tested?

Rule of Convenience

When a gift is made to a group, such as "my children", the class "closes" when at least one member is entitled to distribution.

Statute of Limitations Exception: Characterization

When a statute of limitations is specific to a particular kind of claim and was created by the law that created the cause of action to which it applies, courts will often characterize the statute of limitations as substantive. (Traditionally, this was applied only when the foreign statute barred an otherwise timely action, not when it extended the time for bringing the action.)

Actual Authority: Express

When an agent is expressly given authority to act for the principal.

Government regulation of private speech.

When is it a First Amendment question?

Venue is proper in a district where (1) any defendant resides if all defendants reside in the same state, (2) in a district where a substantial part of the events or omissions giving rise to the claim occurred, or (3) a substantial part of property that is subject to the action situated.

When is venue proper? (There are also narrow fallback rules which, so far, have not been emphasized on the MEE.)

Written statements given by witnesses might be discoverable even if they are considered work product if the other party can show substantial need and undue hardship. However, an attorney's mental impressions are never discoverable.

When is work product discoverable?

Strict Products Liability

When strict products liability is tested, you are expected to know that the defendant must be a merchant (rather than a casual seller of goods). Further, under a manufacturing defect theory, the product must be defective from the time it left the manufacturer's hands. All commercial sellers (including a store that sold the product) are liable for manufacturing defects.

Fighting Words

Words likely to incite an immediate violent reaction.

Generally, partners in a general partnership have...

actual and apparent authority to bind the partnership in contracts entered into in the ordinary course of business.