Contracts, Property, Torts, Criminal Law, Family Law, Evidence, Criminal Procedure, Constitutional Law, Civil Procedure, Secured Transaction

SOF Satisfied? | 3. Real Estate

o A signed writing will satisfy the Statute of Frauds. o Part performance of a real estate contract can satisfy the Statute of Frauds if any two of the following three elements are met: 1) Possession; 2) Payment; 3) Improvements to the land.

Land Use - Private nuisance

o A substantial and unreasonable interference with another individual's use or enjoyment of his property.

3-Party Beneficiary K | 3. Revoking Third-Party Rights - Enforcement Rights

o A third party will not lose enforcement rights if any of the following facts is true, as these facts cause the right to vest: The beneficiary detrimentally relies on the rights (similar to promissory estoppel); The beneficiary manifest assent of rights to the contract; or The beneficiary filed a lawsuit to enforce the contract.

Land Sale K's Exceptions - Detrimental Reliance

o An estoppel doctrine that applies where a party has reasonably relied on the contract and would suffer hardship if the contract were not enforced. The two doctrines—part performance and detrimental reliance—often go hand in hand.

Defense of Formation | 5. Duress

o An improper threat that deprives a party from making a meaningful choice to contract o Economic duress—arises when one party makes threats to induce another party to contract (or modify a contract)

Hearsay Exception - Declarant Unavailable Threshold requirement

must show the declarant is unavailable to testify as a witness

Equitable Servitudes Fixtures Making Improvements

o A fee simple owner of property is free to make improvements to the property, including fixtures, subject to governmental land use regulations. o Holders of a life estate or tenants, by contrast, are limited by the doctrine of waste.

Pre-Foreclosure Rights and Duties - Waste

o A homeowner cannot commit waste that will impair the lender's security interest. o Affirmative waste, voluntary waste, and permissive waste are more of a concern than ameliorative waste (improvements).

Deed Execution - Agents

o A principal can appoint an agent to execute a deed. o Equal Dignities Rule: If the agent is required to sign (e.g., execute a deed), then the agency relationship must be created in writing.

NOT Easements - License

o A revocable permission to use another's land (e.g., a ticket to a sporting event; the permission you give to a plumber to come into your house) • Remember: Easements are not revocable but licenses are revocable

Excuses | Distinguishing accord and satisfaction from modification

o If the party to perform has an option to satisfy a contract obligation by doing something else, then it is an accord and satisfaction. o In a modification, it is clearer that the parties have changed the performance obligation.

Remedies S. Probs w/Exp. Damg. | 2. Incomplete Performance

o If the paying party breaches in a partially completed building contract, can the builder continue to work on the job? No, this runs counter to mitigation—it would be "running up the damages." o Adjust the recovery to take account of the fact that the builder did not need to finish the job o Use this formula: Expectation Damages = Contract Price - Amount already Paid - Amount that Would Be Needed to Finish the Job

Remedies S. Probs w/Exp. Damg. | 1. Lost Volume Profits (LVP)

o If the paying party breaches, then normally the selling party needs to mitigate by reselling the goods or services to another person. o But if the seller is a retailer who sells this type of product all the time, the seller might try to argue for LVP.

Where do we see these restrictions?

o Inter vivos grant of an estate smaller than a fee simple; o Devise of an estate smaller than a fee simple; o Co-tenant agreement; o Covenants that run with the land; o Easements.

equitable servitudes - how to bind a successor

o It must be in writing; o Must have been intended to run with the land (same standard as a real covenant); o Must touch and concern the land (same standard as a real covenant); o Successor must have notice (actual, record, or inquiry). o Remedy: Injunctive relief

Negligence - Possessors of Land Standard of Care Traditional tripartite structure

one-half of jurisdictions continue to follow this approach The standard of care depends on the status of the entrant as a trespasser (lowest standard of care), a licensee (intermediate standard of care), or an invitee (highest standard of care).

Establishment of Religion - Standard of Review Examples

ong standing public monuments and symbols with explicit religious content (if validated by history, then likely upheld but not necessarily upheld if built today); and long standing practices such as "In God We Trust" on our coins and "God Save this Honorable Court" when the Supreme Court opens session.

State Regulation and Taxation of Commerce Dormant Commerce Clause - No discrimination against out-of-state interest Exceptions

to no discrimination against out-of-state interests: • State as Market Participant • Subsidies • Federal Approval

The Powers - The Commerce Power

Almost anything can be regulated as interstate commerce Congress can regulate: • The channels of interstate commerce (highways, seaways, airways, etc.); • The instrumentality of interstate commerce (cars, trucks, railroads, ships, etc.); and • Intrastate (and interstate) activity (economic or commercial) that has a substantial effect on interstate commerce.

SM: Types of Support - f. Palimony

Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship. The treatment of such cohabitation agreements and the resulting support of palimony vary among jurisdictions. A majority of jurisdictions distinguish between contracts that are based on sexual services and those in which the agreement is independent of the illicit relationship. Some courts also permit remedies to unmarried couples based on an implied-in-fact contract, resulting trust, constructive trust, or quantum meruit theories. In most states, the Statute of Frauds does not require that an express contract between cohabitants be in writing.

Necessity

Available in response to natural forces; i.e., it is the lesser of two evils

Specific In Personam Jurisdiction - Federal Exceptions The Bulge Provision of the Federal Rules

Allows service anywhere within 100 miles of the federal courthouse, even if in another state, in two situations: i) For impleading third-party defendants under Rule 14; and ii) For joining necessary parties under Rule 19. (More later on these rules.)

Exceptions to the Warrant Requirement Evidence Obtained From Administrative Searches

Police do not need search warrants to conduct administrative searches. Two kinds: 1) Administrative warrants (e.g., fire or health inspections of a building) 2) Warrantless administrative searches—used to ensure compliance with various administrative regulations

THE TRIAL PROCESS - Jury Jury Selection | The petit or petty jury is selected through the process of voir dire

Two ways to remove potential jurors: challenges for cause and peremptory challenges. • The actual jury that is seated must be impartial, but it does not have to reflect a fair cross-section of the community.

Searches Incident to Arrest Inventory search

When the police arrest a driver and impound his car, it may be searched for inventory purposes.

Products Liability - Strict Products Liability Defective Product | Failure to Warn

of a foreseeable risk that is not obvious to an ordinary user Learned Intermediary rule (Often applies to prescription drugs): • Manufacturers of prescription drugs must warn the prescribing the drugs. • Exception: drugs marketed directly to consumers

Searches Incident to Arrest Special rule for cellphone

officers may seize a cellphone during an arrest and check the phone for dangers, but police need a warrant to search the phone's digital information

Negligence: Causation Cause in Fact "But-for" test

plaintiff must show that the injury would not have occurred "but for" the defendant's negligence

Performance Implied Conds UCC | 3. Delivery

· The default method of delivery under the UCC is one delivery of the goods. · The UCC allows for installment contracts (agreement for delivery in separate lots). The buyer can reject a specific delivery that is not perfect only when there is substantial impairments in the installment that cannot be cured.

Easement Termination - Release

· The holder of the easement expressly releases it. · The release must be in writing - SOF.

Motion for Judgment as a Matter of Law (JMOL)

• At close of other party's evidence where evidence is so one sided • Formerly called Motion for Directed Verdict • Essentially a motion for summary judgment after the trial has begun. • Made by defendant at the end of plaintiff's case or by either party at the close of all the evidence

Tangible Evidence | Documentary Evidence—Ways to Authenticate Ancient Documents

• At least 20 years old; • In a condition unlikely to create suspension; and • Was found in a place where such documents would be if they were authentic

DECLARANT'S AVAILABILITY IMMATERIAL

• Business Records • Public Records • Learned Treatises (scientific, historical, or medical) • Judgment of Previous Conviction • Records of vital statistics • Records of religious organizations • Marriage and baptismal certificates, and other family records • Statements in ancient documents • Market reports and commercial publications • Reputation

Negligence: Special Rules of Liability Survival action

• Brought by a representative of the decedent's estate on behalf of the decedent for claims that the decedent would have had at the time of the decedent's death EX: injury happened before death/causing death • Claims include damages resulting from personal injury or property damage

6 other acceptance rules "All" "Double M is CD"

• Directed to one person Offeror must be specifically directed to the person trying to accept it • Must know about that offer in order to accept it. • Communicate acceptance • Mailbox Rule • Silence Acceptance • Implied-in-Fact K

Discovery Devices | Use of Depositions at Trial

• Discoverability does not equal admissibility. • Deposition of an adverse party is admissible as an admission of a party opponent. • An opposing party's statement is not the same as the statement against interest exception to hearsay. See the Themis Evidence materials for a more detailed discussion. • Deposition of a mere witness can be used to impeachment that witness. • Deposition of a witness who does NOT testify can be used if the witness is dead, beyond the court's subpoena power, or otherwise unavailable. • Can also be used if the witness is more than 100 miles from the place of trial.

Negligence Immunities - Federal and State Governments Government officials

• Discretion functions—immunity applies • Ministeral functions—no immunity • Westfall Act—precludes any personal liability on the part of a federal employee under state tort law.

State Taxation of Interstate Commerce

• Discriminatory taxation will be struck down unless Congress consents, and nondiscriminatory taxation will be upheld unless it is unduly burdenson.

Expert Witnesses Ultimate Issue

• Experts may express an opinion on the ultimate issue in most types of cases. • Courts do not allow experts to testify about whether a criminal defendant had the requisite mental state of any element of a crime or defense.

Admissions of a Party Opponent

• If a statement that is being introduced against a party is the party's own prior statement, then it is not hearsay. • Applies to anything a party said • This type of statement must be offered by the opposing party. A party cannot introduce its own hearsay statements using this exclusion.

Certification of Pleadings - Violation of certification requirement can be raised by court or by a party in a motion for sanctions.

• Move to dismiss or seek sanctions (Rule 11) • The attorney can be ordered to bear the cost of baseless or improper filings.

Jury Instructions Court must provide an opportunity to object to proposed instructions

• Objections must be on the record (preserved), for stated reasons (so the appellate court can follow the argument), and made BEFORE the jury retires to deliberate. • Only a timely objection preserves the issue for appeal.

Jurisdiction The United States has the power to criminalize and to prosecute crimes that:

• Occur inside the bounddaries • Occur on ships, planes, • Are committed by U.S. nationals abroad

Voluntary Manslaughter

• Occurs when a defendant intends to kill the victim, but his state of mind is less blameworthy than murder • Acted in the "heat of passion" or "under extreme emotional disturbance" • Test: Is the situation one in which most people would act without thinking and without time to cool off?

Accessories After the Fact

• People who assist the defendant after the crime has been committed (e.g., obstruction of justice or harboring a fugitive)

Challenge to Evidence Ruling - Plain Error Rule

• Plain error—error that was obvious on its face • Appellate court will sometimes reverse the case to prevent a miscarriage of justice, even if no objection or offer of proof was made at trial You should not rely on the plain error rule. You should actively preserve the record for appeal.

Subject-Matter Jurisdiction: Removal Jurisdiction Removal

• moves case from state court to federal court. • No procedure for removal of a case from federal court to state court. - Federal court can obstain from hearing the case (in very narrow circumstances).

The Exclusionary Rule 5½ Exceptions - Inevitable discovery

If the evidence would have been discovered anyway through lawful means, it will be admissible.

Trade Libel

need not necessarily damage the business's reputation (1) Publication; (2) Of a false or derogatory statement; (3) With malice; (4) Relating to the plaintiff's title to his business, the quality of his business, or the quality of its products; and (5) Causing special damages as a result of interference with or damage to business relationships

"IT" Trespass to Land Damages

no proof of actual damages is required.

Notification of disposition is required to be sent to

(i) the debtor, (ii) any secondary obligor, and, in the case of non‐consumer goods, (iii) any other secured party or lien holder who held a security interest that was perfected by filing or pursuant to a statute, and (iv) any other party from whom the secured party has received authenticated notice of a claim or interest in the collateral.

Recordig Acts - Constructive Notice

(i.e., record notice)—when a prior interest is owned;

Negligence: Vicarious Liability Respondeat Superior - Scope of employment— Frolic

(major deviation from the scope of employment)—the employer not liable.

Power of sale

(private sale): Sale held by the mortgagee/lender

If the question involves whether a conviction should be overturned

(rather than whether the evidence should be suppressed), apply the harmless error rule: Ask, if this piece of evidence had not been admitted, would it make a difference to the outcome?

Procedural Due Process—the Right to Notice and a Hearing If life, liberty, or property is being taken by the government, what process is due? - To decide what kind of process is due, the courts balance three factors:

1) The individual interest at stake (life, liberty, property); 2) The value in protecting that interest; and 3) The government interest in efficiency and cost.

Types of Invasion of Privacy

1. Intrusion Upon Seclusion 2. False Light 3. Appropriation of the Right to Publicity 4. Public Disclosure of Private Facts

Claim Preclusion (Res Judicata) Ask two questions IN THIS ORDER:

1. Is the claim in the second suit precluded by the prior adjudication? If yes, the inquiry ends. 2. If not, are there any issues in the second suit precluded by the prior adjudication? Always ask these questions separately and in order.

Remedies | 5. Special Problems with Expectation Damages

1. Lost Volume Profits (LVP) 2. Incomplete Performance 3. Economic Waste and Diminution in Market Value Damages

Pre-Foreclosure Rights and Duties

1. Mortgagee/Lender Take Possession 2. Waste 3. Equity of Redemption

Amendments to the Pleadings - Amendment to Add or Change a Party

An amendment to add or change a party against whom a claim is asserted must: • Concern the same conduct, transaction, or occurrence as the oringnal pleading; and • The party to be added (new party) must have known or had reason to know that the action should have been brought against that party but for the some kind of msitake.

A. Annulment

An annulment voids a marriage and declares it as having never been valid (as opposed to divorce, which terminates a valid marriage). An annulment action involves two types of relationships: void and voidable

Defenses "IT" | Privilege of Arrest - Misdemeanor

An arrest by a police officer may only be made if the misdemeanor was committed in the officer's presence. An arrest by a private person may only be made if there is a "breach of a peace."

Gratuitous assignment

Assignments without consideration (i.e. gratuitous assignments) are generally revocable. However, a gratuitous assignment cannot be revoked if (i) the obligor has already performed, (ii) promissory estoppel applies, or (iii) a document evidencing the assigned right or a written assignment signed by the assignor was delivered to the assignee.

Affirmative Duty to Act

Assumption of duty Placing another in danger By authority By relationship • These affirmative duties are not a Superman duty. It is a duty of reasonable care to aid or assist those persons and prevent reasonably foreseeable injuries.

UCCJEA 7. Enforcement of Another State's Orders a. Registration of order

A custody order from another state can be registered with or without a simultaneous request for enforcement. Typically, most jurisdictions require at least one certified copy of the order from the appropriate entity. The registering court can then grant any relief available for enforcement of the registered order

4. Separate Maintenance

A separate maintenance action provides for a decree of support for a party, typically the wife and any minor children. It does not, however, authorize the parties to live apart. As with a limited divorce, the parties are still considered married and cannot remarry.

State Regulation and Taxation of Commerce Dormant Commerce Clause - No discrimination against out-of-state interest Exceptions | Federal Approval

Dormant Commerce Clause applies only in the absence of federal action. If Congress authorizes or consent to state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of-state interests.

Mistake of Fact Insanity test - Model Penal Code

Due to a mental disease or defect, the defendant did not have substantial capacity to appreciate the wrongfulness of his actions or to conform his conduct to the law • All four tests require that the defendant have a mental disease or defect. Being a sociopath is not enough to constitute insanity.

The Best Evidence Rule (Original Document Rule) Duplicates

Duplicates are fine, unless: • There is a genuine question about the authenticity of the original; or fairness • If contents are at issue, the original should be required.

Insanity Defenses

Involves a defendant who, because of a mental disease or defect, is unable to conform his conduct to the law.

Interrogations - 5th Amendment Statements Made by an Individual | "Interrogation"

Involves either the official asking questions or engaging in other words or conduct that police know or should know will elicit a response • Does not include volunter statements • Does not include routine booking

Scope of a Conspiracy Spoke-Hub Conspiracy

Involves many people dealing with a central hub; participants are not liable for the substantive crimes of their co-conspirators because each spoke is treated as a separate agreement rather than one larger general agreement

Extortion: A Variation of Robbery

Involves threats of future harm (including non-physical harm)

Multi-Party Litigation | Intervention Types of intervention - Intervention as of right

Is available when the outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action.

Mistake of Fact Defenses

Is this a specific-intent crime or a general-intent crime? • General-intent crimes: Only reasonable mistakes of fact may be used as a defense. • Specific-intent crimes: all mistakes of fact are potential defenses, even unreasonable mistakes.

The Exclusionary Rule 5½ Exceptions - (Half) Exception

Isolated negligence by law enforcement personnel does not necessarily trigger the exclusionary rule. • To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion could meaningfully deter it.

LL & Tenant | Periodic Tenancy

Estate that is repetitive and ongoing for a set period of time (e.g., month-to-month, year-to-year) · Renews automatically at the end of each period until one party gives proper notice of termination · Express/implied · Goes until proper written notice · Notice before the start of the last term

Withdrawal from a Conspiracy

Even if a defendant cannot withdraw from the conspiracy (e.g., because a conspiracy had already been formed), the defendant can limit his liability for substantive crimes by informing the other conspirators of withdrawal or timely advising legal authorities.

Past Sexual Conduct - Victim's conduct (Rape Shield Laws) Exceptions in civil cases

Evidence of the victim's past sexual conduct or predisposition is admissible only if its probative value substantially outweights the danger of harm to the victim and unfair prejudice to any party.

Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove negligence or wrongdoing. Having Insurance does not = negligence

Challenge to Evidence Ruling - Challenging on Appeal

Evidentiary ruling can be reversed on appeal only if: 1) A substantial right of a party has been affected (i.e., not harmless error); and 2) Notify court by objection or by offer of proof

State Regulation and Taxation of Commerce (Comity Clause) Forbids

Forbids serious discrimination against OOS individuals, absent substantial justification. • Does not protect out-of-state corporations - but non-reside individuals. • "Serious discrimination" typically involves employment.

Negligence: Breach of Duty — Res Ipsa Loquitur What is it?

It is enough circumstantial evidence to flag to bring a breach case to a jury - circumstantial evidence of negligence is sufficient evidence of negligence.

UCCJEA 3. Default Jurisdiction

If no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction.

"IT" IIED - Conduct Toward Third Parties

If the defendant directed extreme and outrageous conduct toward one party and ended up causing severe emotional distress to another party, the doctrine of transferred intent may make him liable for IIED, but only in certain circumstances. 1. Immediate family member 2. Bystander 3. Different intentional tort

Permission - MJ

If the lease requires the landlord's permission to transfer, but is silent as to the applicable standard, then: o Majority rule: A landlord may deny permission to a transfer only for a commercially reasonable reason.

Permission - MIN

If the lease requires the landlord's permission to transfer, but is silent as to the applicable standard, then: o Minority rule: A landlord may deny permission at her discretion, which means for any reason or no reason at all.

Performance Implied Conds UCC | 2. Seller's Right to Cure

If the seller fails to tender perfect goods and time is left on the contract or the seller had reasonable grounds to believe that the buyer would accept a replacement, then the buyer must give the seller a chance to cure.

Defenses "IT" | Express Consent - Consent by mistake

a valid defense unless the defendant caused the mistake or knew of it and took advantage of it

Libel

a written, printed, or recorded statement (including TV/radio broadcasts, e-mail, and electronic communications)

Negligence: Breach of Duty — Res Ipsa Loquitur Third Restatement

applies the elements generously • The accident is a type of accident that ordinarily happens as a result of negligence of a class of actors; and • The defendant is a member of that class. • Res ipsa loquitur just reminds the trier of fact that circumstantial evidence can be sufficient to infer negligence.

Products Liability - Strict Products Liability Defenses | Substantial change in the product

bar to recovery

"IT" False Imprisonment - Methods of Confinement Shopkeeper's privilege

a shopkeeper can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter.

Mod CS: (3) Jurisdiction for Modification of Support

Similar to the jurisdictional issues with child-custody orders, a state court may not modify an order of child support rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction. A court order that fails to adhere to this jurisdiction rule does not qualify for enforcement under the Full Faith and Credit Clause of the U.S. Constitution.

Mens Rea—The Model Penal Code States of Mind Purposely

The defendant's conscious objective is to engage in the conduct or to cause a certain result

Easement Termination - Prescription

The holder fails to protect against the servient estate owner's interference for the statutory period. ** It is the interference of a servient estate owner that is continuous, actual, open, and hostile for a specific period which may cause an easement right to be terminated by prescription **

Negative Easement

The holder has the right to prevent someone from doing something on her land.

Installment Land Contract

The seller finances the purchase; the seller retains title until the buyer makes the final payment on an installment plan.

What is an Output K? "All"

The selller is offering to sell 100% of whatever amount is produced to this individual

Easement Termination - Estoppel

The servient owner changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned.

Equitable Servitudes Duties

To the community: The association must deal fairly with members of the community. o Good faith; o prudence; o Ordinary care; o Business Judgment Rule controls (the board is shielded from honest but mistaken business decisions).

Choice of Law

"Choice of law" more commonly refers to a federal court sitting in diversity determining whether state or federal law controls a given issue.

Real Covenants | Two Kinds of Privity

1. Horizontal 2. Vertical

What is an agreement? "All"

A K is typically created by an agreement. This can be broken down into the offer and the acceptance

Implied Easements Scope

Determined by the nature of the prior use or necessity

Effects of Foreclosure - Mortgagor

Foreclosure eliminates the mortgagor's interest in the property

Negligence: Special Rules of Liability Recovery for Loss Arising from Injury to Family Members

Family members (typically a spouse) can claim loss of consortium or companionship.

Area variance

Focuses on restrictions concerning property development.

Speech by Government Employees

General rule: Government employees generally cannot be hired or fired based on political party, political philosophy, or any act of expression. • Can be fired for disrupting the workplace or not doing their jobs.

Tangible Collateral

Goods—"Goods" encompasses anything that is "moveable at the time that a security interest attaches." There are four classes of goods: 1) Consumer goods 2) Farm products 3) Inventory 4) Equipment

Erie Doctrine | Federal Procedures

Hanna v. Plumer: Anything covered by the Federal Rules of Civil Procedure is "procedure" for purposes of Erie—federal law applies, even if the substance of the claim is governed by state law.

First main Question: Formation of an K?

Has an enforceable K been formed? 1. Agreement (offer and acceptance) 2. Consideration (and related theories for when you have to keep your promises) 3. Defenses to formation (incapacity, duress, etc.) 4. Statute of Fraud (enforceability) "All K don't stink"

General Rule under Erie

In a diversity case, a federal court applies state substantive law.

Substantive Due Process Fundamental Rights Privacy - Family relations

Includes the right to live together with close relatives

The Double Jeopardy Clause The Attachment and End of Jeopardy

Jeopardy attaches when the jury is sworn in or, in a bench trial, when the first witness is sworn in. • Before the trial begins, the prosecutor can add, drop, or change the charges against a defendant without Double Jeopardy problems. • Acquittal • Conviction • Mistrial

Objection to SMJ

Lack of SMJ can be raised by any party at any time, including by: • The plaintiff, who chose to go to the wrong court • The court itself • Anyone for the first time on appeal

State Taxation of Interstate Commerce - Ad Valorem (value-based) Property Taxes

Levied on personal property

4. Limited Divorce

Limited divorce, known in some states as a "divorce from bed and board," is recognized in most jurisdictions, but rarely used. When used, it is often for religious or medical reasons, as the parties do not sever the marital tie and are still considered legally married. They are, however, permitted to live apart. As with an absolute divorce, the court will determine support and property division.

Deadly force Duty to Retreat? Majorty

Majority Rule: Retreat is not required even when entitled to use deadly force

2) Waiting period

Many U.S. jurisdictions impose a waiting period between the date on which a couple applies for a marriage license and its issuance date or that date and the date of the marriage ceremony. The waiting period may typically be waived by the court in cases of an emergency.

Free Exercise of Religion - Religious Conduct Neutral regulation of conduct

Neutral, generally applicable laws must be obeyed despite religious objections. • No right to _______________________________.

Can a tenant waive habitability protection?

No

Deed Execution - Signature Is the grantee required to sign too?

No

Deed Recording | Does recording affect the validity of a deed?

No, a deed is valid at delivery.

Owner wants to expand the nonconforming use?

Nope

The nonconforming owner switches to another nonconforming use?

Nope

Takings and Zoning

Not a taking and no compensation is required, so long as the zoning advances legitimate interests and does not extinguish a fundamental attribute of ownership.

B > PL

Not negligence

Performance Implied Conds CL | Can a breaching party who fails to satisfy the CCE due to a material breach get paid anything?

Not on the K - maybe quasi-K

Other Improper Questions Argumentative questions

Not really a question; just intended to bother or harass the witness

Deadly force Duty to Retreat? On MBE

On the MBE, the question will tell you if you are to assume a duty to retreat. Otherwise, assume that you can use deadly force to resist deadly force or another serious crime.

SOF UCC Satisfied? | b. Part performance

Part performance satisfies the SOF, but only for the quantity delivered and accepted.

1. Option "All"

Pay to buy an option for promise - "saving the offer for money"

Discretion functions

Policy making component - doesn't want P's to 2nd guess

Takings

Private property shall not be taken for public use without just compensation. • Public use—need only be rationally related to a conceivable public purpose. This includes taking private property to resell to another private owner for purposes of economic development.

b. Retirement or pension benefits

Retirement or pension benefits acquired during the marriage are considered marital property and are subject to equitable distribution. This includes military pensions.

Easement

Right held by one person to make use of another person's land

Equal Protection - Suspect Classifications Continued Citizenship status rule

Rule: States and localities cannot require U.S. citizenship for access to private employment or for government benefits.

Judicial sale:

Sale under the supervision of a court

Special Rules for Service of Process - Infant (minor)

Service on the infant AND on the guardian/parent

Sixth Amendment Right to Counsel vs. Fifth Amendment Miranda Right How is it invoked?

Sixth Amendment right automatically attaches once there has been an indictment, information, or other formal charges • Exists unless a defendant knowingly and intelligently waives the right Fifth Amendment right (protected by Miranda) must be affirmatively invoked by the defendant - custodial interrogations

Summary | Specific jurisdiction

State long-arm statutes allow very broad reach against out-of-state defendants so long as the claim arises out of the defendant contact with the state.

Hearsay Exceptions - Declarant's Availability Immaterial Excited Utterance

Statement relating to a startling event or condition while the declarant is still under the stress of excitement caused by the event or condition

Hearsay Exception - Declarant Unavailable Exceptions Statements of Personal or Family History

Statements concerning the unavailable declarant's own birth, adoption, marriage, familial relationship, etc. are admissible under this exception.

Interrogations - 5th Amendment Statements Made by an Individual | Miranda

Statements made as a result of custodial interrogations are inadmissible unless they are accompanied by procedural safeguards (i.e., the Miranda warnings)

Admissions of a Party Opponent Co-conspirators

Statements made by co-conspirators during and futherance of a conspiracy are admissible against other co-conspirators.

Effects of Foreclosure - Mortgagor Exception

Statutory redemption: • Some states allow the mortgagor to redeem the property even after the foreclosure sale. • A statute enables the homeowner to restore the rights after the foreclosure. It ends the purchaser's title and restores title to the homeowner.

The Powers - The Commerce Power Intrastate | Substantial effect

Substantial effect is judged in the aggergate. The question is whether the aggregate activity of everyone doing the same thing has a substantial effect on interstate commerce, and the answer is almost always yes.

Substantive Due Process Fundamental Rights Privacy - Marriage

Substantial state interference with a marriage—including same-sex marriage—is unconstitutional.

Land Sale K's Who's Who? - Buyer

Sucker looking to get stuck with a money pit

Specific In Personam Jurisdiction - In Rem Jurisdiction

Suit against property (the res) versus suit against person - Form of specific jurisdiction 1) Utility 2) The res 3) Essential 4) Form of specific Jurisdiction

Equitable Servitudes Termination

Terminates as an easement does (i.e., merger, release, etc.)

Establishment of Religion - Aid to Religious Institutions

The Establishment Clause allows financial to religious primary and secondary schools. • The government gives a voucher to parents and the parents are allowed to send their children to the schools of their choice. • The parents are making the decision as to whether a religious school gets the money. - The government is not picking and choosing recipients

The Confrontation Clause

The Sixth Amendment guarantees a defendant the right to confront the witnesses against him, as well as the right to compulsory process to produce his own witnesses. • Crawford Doctrine • Bruton Doctrine • Defendant's right to present witnesses

#CS (1) Calculating Support c. Melson formula

The Melson formula is similar to the income-shares model, but it takes into account six specific considerations, such as the minimum amount that each supporting parent must retain, the number of the supporting parent's dependents, and a Standard of Living Adjustment (SOLA).

THE EXECUTIVE POWER AND INTERBRANCH RELATIONS The Powers of the President—Domestic Few powers that are exclusively executive and, therefore, not subject to statutory control - Pardon Power

The President can pardon or commute punishment for any and all federal offenses. (Governors have a similar power for state crimes.)

THE EXECUTIVE POWER AND INTERBRANCH RELATIONS The Powers of the President—Domestic Few powers that are exclusively executive and, therefore, not subject to statutory control - Veto Power

The President has 10 days to veto legislation. The President can veto for any reason or no reason, but cannot veto specific provisions in the legislation and accept others. • Overriding a veto requires a 2/3 majority vote of each house

Defense Counsel - Effective Assistance

The Strickland test—assesses whether a defendant was denied effective assistance: 1. Performance 2. Prejudice

Defense Counsel

The Supreme Court has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. 1. Conflicts of Interest 2. Effective Assistance 3. Choice of Counsel 4. Proceeding Pro Se

Establishment of Religion - Specially Created School District

The Supreme Court struck down a school district created to serve a particular religious population. Cannot single out a particular religion for favorable treatment.

UCCJEA 8. Uniform Deployed Parents Custody and Visitation Act

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA) integrates with the UCCJEA but applies specifically to parents who are also service members. Among other things, the UDPCVA provides that when imminent deployment is not an issue, courts cannot use a parent's deployment as a negative factor in determining the best interests of the child. The act also sets out a procedure for out-of-court custody agreements, sets guidelines for temporary custody, and prohibits entry of permanent custody orders before or during deployment without the service-member parent's consent.

Negligence: Causation Proximate Cause - Extent of Damages

The defendant is liable for the full extent of the plaintiff's injuries, even if the extent is unusual or unforeseeable (Eggshell plaintiff rule).

Judicial Power Source, Scope, and Limitations

The bar exam asks you what the law IS, not what it should be. The examiners test only doctrine. • Source: Article III • Scope: The jurisdiction of federal courts is limited to cases or controversies. • Limitations: The Eleventh Amendment ("11th Amend.") and State Sovereign Immunity

Adoption 1. Termination a. Voluntary termination

The biological parents may voluntarily give up their rights as parents of the minor child and consent to the child's adoption by the adoptive parents.

Mortgagor

The borrower

Easement Appurtenant

The easement is tied to the use of the land.

Mortgagee:

The lender

a. Voluntary termination 1) Consent of unwed fathers b) Limitations on the right to object

The right of an unwed father to object to an adoption may be denied if the father does not demonstrate a commitment to the responsibilities of parenthood, but it cannot be denied if such a commitment has been made.

Effects of Foreclosure - Junior Interests

The rights of junior interests are generally destroyed.

Value Given

The secured party must give value for the security interest.

Parties

There are three types of parties with respect to a secured transaction: (i) a secured party, (ii) an obligor, and (iii) a debtor.

Defense Counsel - Effective Assistance Prejudice

There is a reasonable probability that, had counsel performed effectively, the result would have been different. • If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

Termination Without Trial | Summary Judgment Standard

There is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law_. • "No genuine dispute" means that no reasonable jury could find for the nonmoving party so one sided

Time of Disposition

There is not a specific time in which a disposition must occur.

Specific In Personam Jurisdiction - In Rem Jurisdiction Essential

This state's courts have power over the property. This means that the property must be located w/in state.

"Clogging" the equity of redemption

To "clog" is to create terms that make it harder for a borrower to exercise her equity of redemption. Courts will intervene to prevent clogging.

Real Covenants | Intent

To bind a successor, the original parties must intend for the covenant to run with the land. **Look for express language such as "and his heirs and assigns" to prove the requisite intent.**

"IT" Harms to Personal Property and Land

Trespass to Chattels Conversion Trespass to Land Nuisance

Equitable Servitudes Fixtures Trespassers - New Rule

Trespassers can remove an improvement, or at least recover the value added to the property, so long as they acted in good faith.

Equitable Servitudes Fixtures Trespassers - Old Rule

Trespassers could never remove any fixtures or improvements that they installed.

Specific In Personam Jurisdiction

Turns on a connection between the lawsuit and the defendant contacts to the forum. Plaintiff's claim must arise of the defendant's forum contacts or be directly related to those contacts. Constitutional test: Defendant must have sufficient minimum contacts with the forum such that the exercise of jurisdiction is fair. • fewer contacts are needed to make jurisdiction fair when the lawsuit is really about those contacts.

Covenant of seisin

Warrants that the deed describes the land in question;

Deed Recording | If they do not affect validity, what's the big deal with recording statutes?

We're concerned about subsequent purchasers.

Burglary - Commit a Fel

With the intent to commit a felony once inside • The usual felony is larceny, but it could be another felony, such as battery.

Strict Liability - Abnormally Dangerous Activities

a defendant engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, regardless of precautions to prevent the harm.

Negligence: Vicarious Liability Automobile Owners - Negligent Entrustment

an owner can be directly liable for negligently entrusting a vehicle (or any other dangerous object) to someone who is not in the position to care for it.

"IT" Battery - Harmful Contact Harmful or Offensive Contact

causes an injury, pain, or illness

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Timeliness - Ripeness

concerns prematurity of a case. You must show actual harm or an immediate threat of harm.

Is There a Duty? Categories of plaintiff - Crime Victims

considered foreseeable plaintiffs in certain circumstances

Negligence: Breach of Duty — Statutes Violation by plaintiff

counts as comparative or contributory negligence

Types of Invasion of Privacy - Intrusion Upon Seclusion

defendant intrudes upon the plaintiff's private affairs, in a manner that is objectionable to a reasonable person data privacy

Strict Liability - "Abnormally Dangerous" Activity Scope of Liability

defendant is liable for the harm that flow from the risk that made the activity abnormally dangerous

Intentional Misrepresentation (Fraud) - Scienter

defendant know that the representation is false or acted with reckless disregard for its falsehood

Intentional Misrepresentation (Fraud) - Intent

defendant must intend to induce the plaintiff to act in reliance on the misrepresentation

"IT" Battery - With the Person of Another Harmful or Offensive Contact

includes anything connected to the plaintiff's person

Criminal cases

reasonable doubt Standard

Negligence - Standards of Care for Specific Situation Emergency Situations

standard of care is that of a reasonable person under the same circumstances.

Specific In Personam Jurisdiction - In Rem Jurisdiction Utility

suit can be brought against a piece of property, so long as: • Property is located in the state where you are suing • Suit will settle everyone's claims to the property

Specific In Personam Jurisdiction - Federal Exceptions Federal Interpleader Act (i.e., "statutory interpleader")

the holder of property that is claimed by two or more persons may deposit the property with a court to determine ownership. Under the Act, there need be only two adverse claimants of diverse citizenship to establish federal jurisdiction

THE LEGISLATIVE POWER: THE POWER TO ENFORCE THE CIVIL WAR AMENDMENTS Fourteenth Amendment | To be properly remedial

the legislation must have "congruence" and "proportionality." That is, there has to be a reasonable fit between the remedial law enacted by Congress and the constitutional right as defined by the Supreme Court.

Intentional Misrepresentation (Fraud) - Causation

the misrepresentation must have caused the plaintiff to act or refrain from acting

Products Liability - Warranties Implied warranties | Merchantability

the product is suitable for the ordinary purposes for which it is sold.

"IT" False Imprisonment

three elements: • Defendant intends to confine or restraint another within fixed boundaries; • The actions directly or indirectly result in confinement; and • Plaintiff is conscious of the confinement or harmed by it

Defenses "IT" | Defense of Property - Force to regain possession of land Modern Rule

use of force is no longer permitted; only legal process

Three things that ARE NOT apart of the powers

1) Promoting the general welfare is not a power of Congress; 2) Congress does not have a general police power (serve the public good; 3) Necessary and Proper is not a free-standing power of Congress. It works only as an add-on to some other legislative power.

Negating Mens Rea - Mistakes of Law Three potential exceptions

1) Reliance on high-level government interpretations - Relying on your own lawyer's advice does not generally fall into this exception. 2) Lack of notice 3) Mistake of law that goes to an element of specific intent (applies only to the "FIAT" crimes or specific-intent crimes)

Assault Two Forms

1. Attempted battery 2. Fear of Harm

Alternatives to Mortgages—Equitable Mortgages

1. Deed of Trust 2. Installment Land Contract 3. Absolute Deed 4. Conditional Sale and Repurchase

Termination Without Trial

1. Devices 2. Voluntary Dismissal 3. Involuntary Dismissal 4. Summary Judgment

Land Sale K's Formation

1. Two stages 2. Liability 3. Doctrine of Merger

2. Voidable Marriage - Annulment (b) Impotence

A marriage is voidable if one party is "naturally and incurably" impotent, unless the other party knew about the condition before the marriage.

Defense of Formation | 3. Mistake

A mistake is a belieg that is not accord with a present fact a. Mutual mistake b. Uniltateral mistake (one party)

Deadly force

A victim is entitled to use deadly force only if he reasonably believes that deadly force will be used against him, or under the MPC, reasonably believes that the crime will result in serious bodily injury.

Non-Deadly force

A victim is entitled to use non-deadly force any time he reasonable fears imminent unlawful harm.

2. Voidable Marriage - Annulment

A voidable marriage is valid until one spouse seeks to legally void the marriage. There must be a judicial decree to dissolve the marriage. Grounds for a voidable marriage include (a) age, (b) impotence, (c) intoxication, and (d) fraud or duress. (e) Lack of Intent

Warranties—The "W"

A warranty is a promise about a term of the contract that explicitly shifts risk to the party making the promise. You can also disclaim warranties. Three types of warranties: 1. Express Warranty 2. Implied Warranty of Merchantability 3. Implied Warranty of Fitness for a Particular Purpose

Burglary - Of another

Cannot burglarize yourself

Mandatory Disclosures Scope of Discovery Protective Orders

For good cause shown, court can basically do anything, in its discretion, that justice may require.

THE LEGISLATIVE POWER: THE POWER TO ENFORCE THE CIVIL WAR AMENDMENTS Fifteenth Amendment

• Congress has the power to ensure there is no racial discrimination in voting. • On exam day, be on the lookout for Congressional acts that mirror RFRA. Remember that such acts are generally valid as to Congress, but invalid as applied to the states and localities.

Larceny Elements - Trespassory taking (without consent)

• Consent must be real, not obtained by trick (discussed below) • The defendant bears the burden of proving that there was consent

Did the neighbor's buildings (structures) contribute to the cave in?

If so, the standard to apply to the one excavating is negligence

Subject-Matter Jurisdiction: Supplemental Jurisdiction What to Remember | Diversity Jurisdiction

In diversity cases, supplemental jurisdiction is broadly available for related claims by defendants but much more limited for claims by plaintiffs. • Compulsory counterclaims will generally get in under supplemental jurisdiction. • Cross-claims that arise out of the same transaction or occurence as the anchor claim and are asserted by a defendant will generally come in under supplemental jurisdiction. • Plaintiff can take advantage of supplemental jurisdiction for related claims against a single defendant.

Victim's conduct (Rape Shield Laws)

In general, evidence of a victim's past sexual behavior or sexual predisposition narrow admissible in a criminal proceeding involving sexual conduct.

State Regulation and Taxation of Commerce Dormant Commerce Clause - Rule

In the absence of federal regulation, state regulation of commerce is valid so long as: 1) There is no discrimination against out-of-state interests; 2) The regulation does not unduly burden interstate commerce; and 3) The regulation does not apply to wholly extraterritorial activity.

Defenses "IT" | Self-Defense - Initial aggressor

NOT permitted to claim self-defense unless the other party has responded to nondeadly force with deadly force

Battery Elements - Application of force

Need not be a great deal of force; the slightest touch can constitute force in some cases

Under the UCC how specific must your offer be? "All"

The law is more willing to fill the gaps and find a K, even if the agreement leaves out some terms. - Only essential term is the quantity of selling - Price does not need to be stated

Title theory state

The lender technically has the right, as the holder of title, to possess the property at any time.

Land Use - Nonconforming Uses

Two situations 1. Existing Nonconforming Properties 2. Post-Ordinance Nonconforming Properties

Burglary - Entering

involves breaking the plane of the dwelling

Estoppel by Deed

o Arises when a grantor conveys land the grantor does not own. o If a grantor subsequently acquires title to the land, the grantor is estopped from trying to repossess on grounds that he didn't have title when he made the original conveyance.

Termination Without Trial | Summary Judgment Sworn statement ordinarily must be based on

personal knowledge

Assignment

• Almost all contract benefits can be assigned, in whole or in part, unless the contract explicitly prohibits or invalidates assignments.

Circumstantial evidence

• Evidence from which a fact can be inferred • issue with relevance is how a particular piece of evidence makes a certain fact more likely.

Invasion of Privacy Defenses

• Qualified and absolute privilege • Consent • Truth

Deed

• Reminder: After closing, the land sale contract is merged into the deed. Any liability must arise out of the deed, not the contract.

Defamatory Publication

• The statement must be communicated to a third party. • A person who repeats a defamatory statement may be liable for defamation. • Federal statute provides that internet service providers and platforms are not publishers for the purposes of defamation.

Answer

• Used to respond to any form of complaint • May contain responses, affirmative defenses, and counterclaims

Methods of Proving Character

• When admissible, can only be proved through reputation or opinion testimony • Cannot be proved by specific bad acts

Multi-Party Litigation | Compulsory Joinder of Parties If a necessary party CANNOT be joined, the court decides whether to

• Continue without the necessary party (typically the case) or • Dismiss the whole suit (rare) (i.e., the party is described as being truly indepensible) • The judgment is fact specific.

Negligence Defenses: Comparative Fault Relationship to other defenses

• Most courts no longer use the last clear chance doctrine in a comparative negligence jurisdiction. • Comparative fault is not a defense to intentional torts • Will reduce the plaintiff's recovery even if the defendant's conduct is willful, wanton, or reckless

Regulation of Unprotected and Less Protected Expression Commercial Speech

• Most regulations of commercial speech are struck down. So long as the advertising is truthful and informational, it must be allowed. • Test: Regulation of commercial speech must directly advance a substantial government interest and be narrowly to that interest. - Buzzword: Substantial • Misleading speech: Misleading commercial speech (unlike political speech) may be prohibited.

Burglary - "dwelling"

• at common law is a structure regularly lived in • Modern statutes can also include a commercial building

Perfection of Security Interest

"Perfection" of a security interest is generally necessary for the secured party to have rights in the collateral that are superior to any rights claimed by third parties. A security interest is "perfected" upon attachment of that interest and compliance with one of the methods of perfection.

Three ways a product may be defective

(1) Manufacture (2) Design (3) Warning

Three types of suits

(1) Negligence (2) Strict Liability for Defective Product (3) Breach of implied warranty

"IT" IIED - Courts are more likely to find conduct or language to be extreme and outrageous if:

(1) The defendant is in a position of authority or influence over the plaintiff; or (2) The plaintiff is a member of a group that has a heightened vulnerability (such as young children or the elderly).

Land Sale K's Marketable Title - Examples of defects in title that would render title unmarketable:

(1) Title acquired by adverse possession that hasn't been acquired; (2) Private encumbrances (e.g., mortgage, covenant, easement); (3) Violation of a zoning ordinance.

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Timeliness

(Ripeness and Mootness)

Real Covenants | Vertical Privity Ask 3 questions

(i) Identify whether you are running the benefit or the burden; (ii) If it is the benefit, you need relaxed vertical privity and you don't care about horizontal privity; (iii) If it is the burden, you need horizontal privity and strict vertical privity.

Land Sale K's Statute of Fraud - Essential terms

(i) The parties (i.e., the seller and the buyer); (ii) description of the property; Price and payment info (e.g., money, financing)

If tenant chooses to withhold rent, tenant must:

(i) notify the LL of the problme; and (ii) give the LL a reasonable opportunity to correct the problem

Personal Jurisdiction (PJ) - In Personam Jurisdiction Bases for General In Personam Jurisdiction

**ANY CLAIM** • Physical presence within the state • Domicile • Consent • Corporations

Negligence: Breach of Duty — Statutes Elements

1) A criminal law or regulatory statute imposes a particular duty for the protection or benefit of others; 2) Defendant violated the statute; 3) Plaintiff must be in the class of people intended to be protected by the statute; 4) The accident must be the type of harm that the statute was intended to protect against; and 5) The harm was resulted by a violation of the statute

The Warrant Requirement Three requirements:

1) A search warrant must be issued by a neutral magistrate 2) Must be based on probable cause to believe that the items sought are fruit [items stolen], instrumentalities [gun used], or evidence of crime [bloody glove]. 3) Must describe the property & place to be searched with particularity

A PMSI in goods exists when:

1) A secured party gave value (e.g., made a loan) to the debtor and the debtor uses the loan to acquire rights in or use of the collateral; or 2) A secured party sells the collateral to the debtor, and the debtor enters an agreement requiring it to pay the secured party all or part of the purchase price (i.e., a sale of goods on credit).

DECLARANT'S AVAILABILITY IMMATERIAL Public Records - There are three sorts of things which may be admissible if set forth in a public record:

1) Activites | Record of activities (Fire dep. reports) 2) Observations | Record of the observation on scene 3) Factual findings | conclusion

DECLARANT'S AVAILABILITY IMMATERIAL Business Records | Admissible if the record was made

1) At or near the time of the event it records; 2) By a person with knowledge of the event and under a duty to report it (or transmitted by such a person); and 3) As part of the regular practice of the business to make that kind of record

Merger - Inchoate and Completed Offenses

1) Attempt 2) Solicitation 3) Conspiracy

LL & Tenant | Tenancy for Years - Termination

1) Termination occurs automatically upon the expiration of the term. 2) Tenant surrendor the lease, or 3) The tenant or the landlord commits a material breach of the lease (e.g., the tenant fails to pay rent).

UCC 2-207 to look out for "A" "Triple A CK"

1. Accceptance 2. Additional term 3. Knock out Rule (Different Terms) 4. Accpetance Based K 5. Confirming Memo

Negligence: Compensatory Damages

1. Actual (Compensatory) Damages 2. Mitigation of Damages 3. Personal Injury—Categories of Compensatory Damages 4. Property Damage

B. Adoption Alternatives Under the Uniform Parentage Act (UPA)

1. Assisted Reproduction 2. Gestational (Surrogacy) Agreement 3. "Frozen Embryo" Issues

Character for Truthfulness or Untruthfulness

1. Character Witness Testimony (FRE 608(a)) 2. Specific Acts (FRE 608(b)) 3. Criminal Convictions (FRE 609)

Different types of Impeachment

1. Character Witness Testimony (FRE 608(a)) 2. Specific Acts (FRE 608(b)) 3. Criminal Convictions (FRE 609) 4. Prior inconsistent Statements 5. Impeachment of a Hearsay Declarant 6. Rehabilitation of a Witness

C. Agreements B/W Unmarried Cohabitants

1. Cohabitation Agreements 2. Property Division Between Unmarried Cohabitants

Negligence - Standards of Care for Specific Situation

1. Common Carriers and Innkeepers 2. Automobile Drivers 3. Bailors and Bailees 4. Emergency Situations

Requirements for Diversity Jurisdiction

1. Complete diversity between plaintiffs and defendants 2. Amount in controversy must exceed $75,000.

Interbranch Relations

1. Congressional Limits on the Executive 2. Delegation of Powers 3. Immunities

Defenses to Intentional Torts Involving Personal Injury "Double D, Double P, SC"

1. Consent 2. Self-Defense 3. Defense of Others 4. Defense of Property 5. Parental Discipline 6. Privilege of Arrest

Negligence: Breach of Duty —Specific Rules

1. Custom 2. Statutes

Foreclosure Two Methods

1. Judicial sale 2. Power of sale o Either way, the proceeds of the sale are used to pay off the debt. o Excess proceeds will be used to satisfy other creditors.

For there to be a crime at all there must be

1. Jurisdiction 2. Actus Reus

Land Use - Support Rights

1. Lateral Support Rights 2. Subjacent Support

Wrongful Use of the Legal System

1. Malicious Prosecution 2. Abuse of Process

Three types of recording acts

1. Race 2. Notice 3. Race-Notice Of the three types of recording acts, notice statutes and race-notice statutes are most heavily tested on the MBE.

Easement Termination "Please Empty All Eight Red Meat Sauces"

1. Release 2. Merger 3. Abandonment 4. Prescription 5. Sale to a Purchaser 6. Estoppel 7. End of Necessity

Recordig Acts Special Rules

1. Shelter Rule 2. Estoppel by Deed

Deed Execution

1. Signature 2. Agents

Mens Rea—The Common Law States of Mind

1. Specific Intent 2. Malice 3. Strict Liability

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases

1. State-law claims still must be part of the "same case or controversy" (common nucleus of operative fact). 2. The court may not have supplemental Jurisdictions for-

Past Sexual Conduct Victim's conduct (Rape Shield Laws)

1. Victim's conduct (Rape Shield Laws) 2. Defendant's Conduct (FRE 413-415)

UCCJEA 2. Significant-Connection Jurisdiction

A court can enter or modify an order if (i) no other state has or accepts home-state jurisdiction, (ii) the child and at least one parent have a significant connection with the state, and (iii) there is substantial evidence in the state concerning the child's care, protection, training, and personal relationships.

Felony murder/MSD Mansluaghter

A criminally negligent killing or killing of someone while committing a crime other than those covered by felony murder (i.e., misdemeanor manslaughter)

The Double Jeopardy Clause - Two warnings about the same offense test Charged v. punished

A defendant can be charged and tried for an offense and a lesserincluded offense at the same trial, but the defendant can only be punished for one offense.

Merger - Inchoate and Completed Offenses Attempt

A defendant who actually completes a crime cannot also be convicted of attempt that crime.

Competence Judge as Witness

A judge is barred from being a witness in a trial over which she is sitting.

Wrongful Use of the Legal System - Malicious Prosecution

A person intentionally and maliciously institutes or pursues a legal action for an improper purpose, without probable cause, and the action is dismissed in favor of the person against whom it was brought.

Subornation of Perjury

A person persuades someone else to commit perjury, such as paying someone to testify falsely

Restraints on Alienation

A restriction on transferring property

What is a mortgage?

A security device used to secure payment of a debt

Free Exercise of Religion - Religious Conduct Campus Access

A state university that allows student groups to meet on campus must allow student religious groups equal access.

II. ENDING A MARRIAGE

A valid marriage, including a common-law marriage, can be terminated only by annulment, divorce, or death.

Hearsay

An out of court statement offered to prove the truth of the matter asserted

Competence

Anyone who has personal knowledge of the matter about which they are going to testify and is willing to make an oath to tell the truth is competent to testify.

"IT" Private Nuisance - NOT a nuisance

Courts have refused to find the blocking of sunlight or the obstruction of view to be nuisances. Exception: The spite fence or spite wall • If a person puts up a fence or wall with no purpose except to block a neighbor's view or sunlight, then courts will sometimes find that to be a nuisance.

Potential Claimants

Creditors Transferees/Buyers Other secured parteis

Mod CS: (4) Tax Consequences of Child Support

In calculating tax liability, the payor may not deduct the support payment from income and the recipient is not required to include it in income.

SM: (2) Modification of Support - Retirement

Jurisdictions differ on whether an obligor can seek a reduction in spousal-support payments upon retirement. Some jurisdictions hold that the parties should have addressed the issue during the divorce proceedings and deny modification, while other jurisdictions find that the dependent spouse cannot expect to receive the same level of support after the supporting spouse retires.

SM: Types of Support - e. Reimbursement

The purpose of reimbursement alimony is to compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future. Often, this type of alimony is awarded only in cases in which one spouse did not work in order to secure an advanced degree or professional license. It is rarely used, and unlike the other forms of alimony, it is based on past contributions rather than present or future needs. Instead of reimbursement alimony, some jurisdictions treat this type of payment as property division.

Products Liability

a plaintiff can bring different types of claims for products liability: • Negligence—plaintiff must prove duty, breach, causation, and damages • Strict Liability for Defective Products • Breach of Warranty Claim

Erie Doctrine | No Federal Statute or Rule on Point Two common applications of Erie

i) If the choice of the procedure would be outcome determinative (change the result), the federal court should usually apply state law to prevent forum shopping. ii) The role of the jury in federal court is entirely controlled by federal law.

Equitable Servitudes Common Interest Communities

o Real estate development in which individual units/lots are burdened by a covenant to pay dues to an association; o The association: Services: Maintains grounds, provides facilities, etc. Enforces the covenants: The association is the "heavy" when your neighbor breaks the rules.

NOT Easements - Profit

o Right to enter another's land and remove a specific natural resource(e.g., oil, gas, timber) o Note: Operates similarly to an easement, but profits cannot be created by necessity.

Contract Modification "C" | UCC

o The UCC universe does not follow the preexisting duty rule. o Ask whether the modification is made in good faith. If so, it is binding even without new consideration.

Defense of Formation | 4b. Fraud in the Execution

you trick someone into signing something that they do not even know is a contract

Three Elements—to prove an intentional tort, the plaintiff must prove

· Act; · Intent; and · Causation.

LL & Tenant | Tenancy at Will

· May be terminated by either landlord or tenant at any time, for any reason & w/o notice · Expressed/implied

Performance Warranties | 3. Implied Warranty of Fitness for a Particular Purpose

· Triggered when a buyer relies on a seller's expertise to select a special type of good that will be used for a special purpose · Warrants that the goods will satisfy this special purpose · Can a nonmerchant extend this warranty by implication? yes, as long as the buyer relies on any seller's expertise. o Can this warranty be disclaimed? yes. Must be CONSPICUOUS - "as is" Disclaimer must be in writing.

FRE 401 and 402

• Evidence must be relevant. • If evidence is irrelevant, it is inadmissible. • All relevant evidence is admissible unless excluded by a specific rule. • Relevance—makes the fact in issue slightly more likely than it would be without the evidence • Evidence is relevant if it is both material (related to some issue in the case) and probative (having a tendency to prove or disprove some fact).

LEGISLATIVE POWER

• In theory, the federal government is a government of limited powers. In fact, the federal government can do almost anything it likes, so long as it does not violate individual rights.

Campaign Finance - Contributions versus expenditures

• Contributions can be regulated, provided that the limits are not unreasonable low. • Direct expenditures in support of a candidate, a campaign, or a political issue cannot be regulated. The rationale is to prevent corruption: a candidate could theoretically act in a certain way in exchange for a larger, direct contribution.

Personal Jurisdiction (PJ) - In Personam Jurisdiction Bases for General In Personam Jurisdiction | Corporations

• Corporations can consent to personal jurisdiction just like individuals, but the rules regarding physical presence are a little different. • Merely "doing business" in a state is insufficient to support general jurisdiction.

Hearsay Exceptions - Declarant's Availability Immaterial Statements Made for Purposes of Medical Diagnosis or Treatment

• Describe a declarant's medical history or past or present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis • Need not be made directly to the doctor The statement need not necessarily be made by the patient.

Mandatory Disclosures

• Designed to streamline discovery • Requires disclosure without having to wait for a discovery request

Federal Question Jurisdiction ("Arising Under")

• Exists for a claim that arises under federal law • Plaintiff's claim must be based on federal law. • Look at the face of the "Well-Pleaded" complaint.

Tangible Evidence | Documentary Evidence—Ways to Authenticate Handwriting verification

• Expert or the jury comparing it to a known sample; or • Lay witness with personal knowledge of the handwriting (from before the current litigation)

Personal Jurisdiction (PJ) - In Personam Jurisdiction Bases for General In Personam Jurisdiction | Consent

• Expressly ("Yes, I'd be delighted") or implicitly (by not raising the issue/objecting) • Can be given by appointment of an agent for receiving of process within the state, or by contract.

Negligence: Breach of Duty — Res Ipsa Loquitur Procedural Effect—in most jurisdictions

• Allows the case to go to the jury • Avoids a direct verdict in favor of the defendant (allows the plaintiff to make a prima facie case of negligence without direct evidence of negligence) • Jury can infer negligence, but need not

Class Actions - Class Action Fairness Act of 2005

• Allows very large class actions, involving at least 100 members with more than $5 MIL at stake • Only minimal diversity required (i.e., any plaintiff diverse from any defendant)

Jurisdiction of the Supreme Court Appellate Jurisdiction | Certiorari

• Almost all cases come to the Supreme Court by way of writ of certiorari. • The key factor is that granting a writ of certiorari is discretionary with the court. • The Supreme Court is the only federal court that exercises discretionary jurisdiction.

Negligence Immunities - Federal and State Governments Federal Tort Claims Act

• Expressly waives immunity and allows the federal government to be sued for certain kinds of torts • There are exceptions (i.e., situations in which the federal government maintains immunity), including certain enumerated torts, traditional functions, and traditional governmental activities.

Appeals - Interlocutory Orders Collateral-Order Doctrine

• Authorizes immediate appeal of "collateral orders" • "Collateral orders" are separable from and collateral to the main suit and too important of an issue deny immediate review (Supreme Court). • Remember: Denial of a motion to dismiss for Forum Nonconveience.

Discovery Devices | Six Discovery Devices Physical and Mental Examination - Requirements

• Available only against another party; • Only permitted when the party's physical or mental condition is in controversy; and • Only for good faith shown immediate

To be admissible, a lay witness's opinion must be:

• Based on the perception of the witness; and • Helpful to a clear understanding of the witness's testimony or the determination of a fact in the case.

General Principles for Privilege

• FRE—no specific, codified privilege provisions • Federal courts are instructed to: - Defer to general principles of federal common law when it comes to most privileges; and - When deciding state law issues when sitting in diversity jurisdiction, apply specific state law regarding privileges.

Attorney-Client Privilege Waiver

• Failure to assert the privilege in a timely manner • Express waiver, even by contract • Failure to take precautions (i.e., careless conduct) on the part of the lawyer

Jurisdiction Requirements The failure to act can be sufficient actus reus

• Failure to comply with a statutory duty; - E.g., the failure to file a tax return, failure to register for selective service, etc. • Special relationship between defendant and victim; - E.g., parents' failure to take care of their children • Voluntarily assuming a duty of care that is cast aside • The defendant causes a danger and fails to mitigate harm to the victim caused by the peril

Termination Without Trial | Summary Judgment Compare with motion to dismiss for failure to state a claim upon which relief can be granted (12(b)(6))

• Failure to state a claim under 12(b)(6) tests only the legal sufficiency of the plaintiff's claim. • Summary judgment can be used to test both the facts AND the law.

Regulation of Unprotected and Less Protected Expression Defamation

• False statements of fact (not opinion) damaging to a person's reputation can be prohibited. • Public officials and public figures can recover for defamation only on proof of knowing or reckless falsity. • Private plaintiffs can recover on proof of negligent falsity.

Defamatory Constitutional Requirements Types of plaintiffs - Public Figure

• General purpose public figure—a person of persuasive power and influence in society • Limited purpose public figure—a person who thrusts himself into a particular public controversy

Negligence: Vicarious Liability Parents and Children

• General rule—parents generally not vicariously liable for their minor children's torts. • Negligence of parents—parents can be liable for their own negligence with respect to their children's conduct (e.g., negligent supervision)

Negligence: Compensatory Damages Property Damage

• General rule—plaintiff may recover the difference in the market value of the property before and after the injury • Cost of repair or replacement value often allowed as an alternative measure of damages

Trespass to Chattels Damages

• May recover actual damages, damages resulting from the loss of use, nominal damages, or the cost of repair • In cases involving use or intermeddling, the plaintiff may only recover actual damages.

Jury Selection

• Minimum of 6 jurors; maximum of 12 jurors • All must participate in verdict unless dismissed for good cause. • Each litigant gets 3 peremptory challenges (no need to explain or justify). • Finding of acts Cannot be used for reasons of race or gender

DECLARANT'S AVAILABILITY IMMATERIAL Public Records - Law enforcement—police reports being used against criminal defendants

• Can only introduce the activities; not what was observed or concluded • Rationale—the officer should actually testify and be subject to cross-examination • Police report may still come in under the recorded recollection exception (officer cannot remember).

Is There a Duty? Scope of Duty—Foreseeability of Plaintiff: Andrews approach

• Minority view • Anytime conduct could harm someone, there is a duty to everyone; whether this particular plaintiff was foreseeable is a proximate cause issue Whether it is analyzed as duty or proximate cause, there is no liability toward an unforeseeable plaintiff.

Multi-Party Litigation | Capacity to Sue and be Sued

• Minors (under 18) and people deemed incompetent may sue or be sued only through a guardian. • Partnerships can sue or be sued as an entity if jurisdiction is based on federal question. - If jurisdiction is based on diversity, then every partner's citizenship counts; every partner must be listed as a party to the litigation (complete diversity applies).

Negating Mens Rea

• Mistake • Strict Liability • General Intent • Specific intent

Negating Mens Rea - Mistakes of Law

• Mistakes about what the law forbids and what it permits • Ignorance of the law is no excuse.

Equal Protection - Fundamental Rights Right to vote—Gerrymandering: Political gerrymandering (drawing districts to hurt one party)

• Can, in theory, violate equal protection. In practice, it is never struck down. • The Supreme Court has not found any no judicially manageable standards for implementing that guarantee—i.e., it is a nonjusticiable political question.

Negligence: Causation

• Cause in fact, or actual cause • Proximate cause, or legal cause

DECLARANT'S AVAILABILITY IMMATERIAL Public Records

• Certain records of public agency and administrators (e.g., fire department, health department, public utilities, etc.) • May be excluded if the circumstances indicate a lack of trustworthiness

Other Relevant Use for Character Evidence

• Character evidence cannot be used to prove propensity. • Can be used for some other relevant purpose (i.e., when character is at issue) • If character is an issue in the case, then it can be proved • Character is generally only at issue in civil cases.

Citizenship of the Parties - Partnerships and unincorporated associations

• Citizen of every state of which its partners are citizens • Applies to partnerships, limited partnerships, trade associations, and unions (the rule makes it much harder to get diversity in these organizations)

Citizenship of the Parties - Class actions

• Citizenship of the named or representative parties count • Class members not named may join without regard to citizenship.

Negligence: Special Rules of Liability Wrongful life

• Claim by a child for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect • A few states permit a "wrongful life" action, but they limit the child's recovery to special damages attributable to the disability.

Substantive Due Process Fundamental Rights Ballot access

• States can impose requirements for candidates to be listed on a ballot, such as longer residency, filing fees, and nomination petitions, so long as serious candidates can reasonably comply • If the requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional.

Types of Seizures

• Stop and Frisk/Terry Stops • Traffic stops • Arrests • Warrants • Warrantless arrests

Equal Protection (Race, Ethnicity, and National Origin) Standards of Review—Same for Due Process and Equal Protection

• Strict scrutiny, i.e., is the law necessary for a compelling interest? • Intermediate scrutiny, i.e., is the law substantially related to an important government interest? • Rational basis, i.e., is the law rationally related to a legitimate government interest?

Presentation of Evidence - Mode and Presentation of Evidence Form of Questions—Leading Questions

• Suggests the answer within the question • Generally, not permitted on direct examination

Conditions of Leased Premises

• The landlord cannot deny the tenant quiet enjoyment. In practice, quiet enjoyment [destruction of legal right] is violated when the landlord, or someone connected to the landlord, renders the premises unsuitable for the intended purpose. • If a tenant complains about conditions, the landlord cannot retaliate by evicting the tenant.

PRETRIAL PROCEDURES - Guilty Pleas

• The majority of defendants do not go to trial; the charges are either dismissed or the defendant pleads guilty • When a defendant pleads guilty, he waives various trial rights, such as the right to put the prosecution to its proof, to confront and produce witnesses, to trial by jury, to challenge the introduction of evidence, to appeal if there is a conviction • If a defendant challenges his plea agreement and succeeds in reopening the case, the prosecution can reinstate charges that it had dropped. • The defendant is entitled to competent assistance from counsel in the plea bargaining process.

Lien theory state

• The mortgagee/lender cannot take possession prior to foreclosure because lender has a lien until foreclosure is complete. • The mortgagor is the owner up until foreclosure.

SOF | One year rule

• The one-year rule is interpreted very narrowly; the question is whether there is no possible way for the contract to be performed within one year. **The Statute of Frauds applies to a contract that cannot be performed within one year from its making**

Regulation of the Media - Broadcasters

• The only special case is broadcasters. • Traditionally, because of early limits on the broadcast spectrum, the government had regulatory authority over broadcasters than over print media or the Internet.

Excuses | Accord and Satisfaction

• The parties to an earlier contract agree that performance will be satisfied instead by the completion of a different performance. o The new performance is called the accord. o The excusal of the initial performance obligation is called the satisfaction. • If the accord is not performed, the other side can sue on either the original obligation or the new promise.

Attorney-Client Privilege Work-Product Doctrine - Can obtain some types of work product from the opposing party if:

• The party can demonstrate a substanial need for the information; and • Show that it cannot otherwise be obtained without undue hardship

Regulation of the Media - No Special Privileges

• The press and media have no special privileges. They have the same rights as everyone else. • When asked about a law on the media, ask whether that law could be applied to you.

Products Liability - Strict Products Liability Defective Product | Manufacturing defect

• The product deviated from its intended purpose. • The product does not conform to the manufacturer's own standards.

Speedy and Public Trial Rights Burden of Proof

• The prosecution must prove every element of the crime beyond a reasonable doubt • Distinguish elements of the crime from affirmative defenses - The government can place the burden of proof with regard to affirmative defenses on the defendant • Affirmative defenses can include insanity, self-defense, entrapment, or mistake.

Subject-Matter Jurisdiction: Supplemental Jurisdiction Federal Question Cases

• This applies whether or not those claims involve the joinder of an additional party. • Historically, this was called "pendant-party jurisdiction."

Fourth Question: Are there Third Party Beneficiaries?

• Three main concepts: 1) Third-party beneficiary contracts 2) Assignment 3) Delegation

"IT" False Imprisonment - Methods of Confinement

• Use of physical barriers, physical force, threats, invalid invocation of legal authority duress, or refusing to provide a safe means of escape • A court may find false imprisonment when the defendant has refused to perform a duty to help a person escape

Character Evidence - Criminal Evidence Defendant's good character | Defendant is limited to witnesses who will testify

• about opinion or reputation • Defendant is not permitted to bring _specific acts • On cross-examination, the prosecutor is allowed to inquire about specific acts

Types of Pleadings

1. The Complaint 2. The Answer 3. The Reply

If an MBE question contains a statute, read it carefully for mens rea language.

"With intent to..." = specific intent crime "Knowingly or recklessly...." = general intent crime No mens rea language = Consider strict liability

Affirmative Easement

The holder has the right to do something on someone else's property.

Unreasonable

The injury outweighs the usefulness of the defendant's actions.

"IT" Intent

· The actor acts with the purpose of causing the consequence; or · The actor knows that the consequence is certain to follow

Counteroffers CL "All"

- Mirror Image Rule: Terms in the acceptance must match the terms of the offer exactly. or it is no an acceptance, but a counteroffer - Conditional acceptance is another form of counter offer

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases - Counterclaims

1. Compulsory counterclaims 2. Permissive Counterclaim

Spousal Privileges

1. Confidential Marital Communications 2. Spousal Immunity 3. Exceptions

Three kinds of deeds

1. General Warranty Deed 2. Special Warranty Deed 3. Quitclaim Deed The list is a hierarchy from best to worst based upon the type of protection that is provided (i.e., how many warranties are built into the deed).

Regulation of the Media

1. Has No Special Privileges 2. Exception Broadcasters

What K universe are you in?

Services/Real estate - CL Goods - UCC

Products Liability - Warranties Defenses - Tort Defenses

• Assumption of the risk • Comparative fault • Contributory negligence • Product misuse

Adoption 1. Termination c. Approval of adoption

After a thorough investigation regarding the fitness of the adoptive parents, the courts either approve or deny the adoption. The investigation may be waived if the adoptive parents are close family members of the child.

Recording Acts - Notice

• The concept of notice is crucial in applying two of the three recording acts. • Three kinds of notice: o Actual o Constructive o Inquiry

the dangerous felony must:

be independent of the killing itself. E.g., aggravated assault that resulted in a death is not felony murder; it is a different type of common law murder.

Default | Possession of Collateral

After default, a secured party is entitled to take possession of the collateral. Unless the security agreement provides otherwise, a secured party is not required to give notice of default, nor is he required to give notice of his intent to take possession of the collateral.

Negligence Defenses: Contributory Negligence "Last clear chance" Doctrine

Allows a negligent plaintiff to recover upon showing that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.

Negligence: Damages

(1) Compensatory Damages (2) Collateral-Source Rule (3) Punitive Damages

What is an offer? "All"

An offer is a manifestation of willingness to enter into an agreement (by the offeror) that creates a "power of acceptance" (in the offeree) - Fragile

"IT" Public Nuisance

An unreasonable interference with a right common to the public as a whole

Tricks a. Adequacy of consideration (nominal consideration)

- A pretense of consideration is insufficient. - A difference in economic value between the items exchanged is not grounds for finding inadequate consideration. - As long as there is enough value, even subjective value to the person receiving it, consideration will be adequate.

UCC 2-207 (1) Acceptance "A" "whoa that's a RAD season"

- Definite and seasonable expression - Reasonable time - can be addition or different -UNLESS acceptance is expressly made CONDITION UPON assent to the additional or different terms

D&S: 3. Defenses

**ONLY APPLY TO FAULT BASE** Must affirmateively pleaded when asserted a. Recrimination and unclean hands b. Connivance c. Condonation d. Collusion e. Provocation f. Insanity g. Consent h. Justification i. Religion

Recent Decisions Two-step inquiry

1. Identify allegations that are "conclusory" or "mere legal conclusions." 2. Look at remaining, factual, allegations, and ask whether they add up to a "plausible" case for recovery. • "Plausible" falls somewhere between "probable" and merely "conceivable" or "possible."

Discovery Devices | Six Discovery Devices

1. Oral Deposition 2. Written Deposition 3. Interrogatories 4. Discovery and Inspection of Documents and Land 5. Physical and Mental Examination - Requirements: 6. Request for Admission

A. Types of Marital Agreements

1. Premarital Agreements 2. Separation Agreement 3. Property-Settlement Agreement

"IT" Nuisance

1. Private Nuisance 2. Public Nuisance MBE loves to test this

State Regulation and Taxation of Commerce

1. Privileges and Immunities of State Citizenship under Article IV (Comity Clause) 2. Dormant Commerce Clause

V & P Time 1. Third Parties a. "Special weight" to a fit parent's decision

A fit parent has a fundamental right to the care, custody, and control of his children. Troxel requires that state courts must give "special weight" to a fit parent's decision to deny nonparent visitation; "special weight" has been held to mean a very significant deference.

Buyer versus secured party with an unperfected security interest

A buyer, other than a secured party, of collateral that is goods, tangible chattel paper, tangible documents or a security certificate takes free of an unperfected security interest in collateral if the buyer: 1) gives value and 2) receives delivery of the collateral 3) Without knowledge of the existing security itnerest

Jurisdiction of the Supreme Court Original Jurisdiction

A case may be filed first in the Supreme Court (controversies between states, mostly).

D. Rights and Obligations of Children 1. Right to Consent to Medical Care

A child's rights regarding medical care vary depending on the age of the child and the medical procedure. Children over a certain age may be able to provide the consent needed for treatment. Otherwise, parental consent is almost always necessary before a child can receive emergency medical treatment, even though the state may override the parent's failure to consent when the child's life is at risk. Nevertheless, in nonemergency situations, minors are allowed to consent to abortions, receive treatment for sexually transmitted diseases, and obtain birth control without the consent of their parents

I. Termination

A child-custody order terminates upon the custodial parent's death or upon the child reaching the age of majority. In cases of death, the surviving parent generally receives custody of the child.

Future-advances mortgages

A line of credit;

Burden of production

A party must produce enough evidence to get the issue to the jury.

Other Improper Questions Compound questions

A question that asks for several answers

Subject-Matter Jurisdiction: Supplemental Jurisdiction same case or controversy

Claims constitute the "same case or controversy" if they arise out of the same common nucleus of operative fact. • All the claims arise out of the same transaction or occurrence.

The mortgagee must give notice ______________________________ foreclosing.

BEFORE

A defect in title must be cured or fixed ______________________________, at which point the contract and deed merge and the deed controls.

BEFORE CLOSING

Prohibited Legislation - Contract Clause

Bars states from legislative impairment of existing contracts, unless there is an overriding need (something like an emergency).

Remedies | 4. Limits on Expectation Damages

There are three major limits on the calculation of expectation damages. 1. Expectation Damages 2. Unforeseeable Consequential Damages 3. Mitigation

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Timeliness - Mootness Exception

Cases capable of repetition, yet evading review, are not moot, even though they look like it. • Such controversies always have an internal time limit (e.g., restriction on certain activities within 90 days of elections, but issue will reoccur by the next election).

Larceny Elements - Intent

CL: an intent to deprive the person of the property permanently • "Borrowing" property, even without the owner's consent, is not larceny, as long as you intend to give it back • If the property is destroyed in your care, you have not committed larceny.

Other Improper Questions Questions calling for inappropriate conclusions

Call for a conclusion that the witness is not qualified to make

Tangible Evidence | Oral Statements Voice identification

Can be authenticated by any person who has heard the voice at any time

Conspiracy - Overt act

Can be lawful or unlawful, as long as it further the conspiracy

Regulation of Unprotected and Less Protected Expression Obscenity - Child pornography

Can be prohibited whether or not it is legally obscene, and possession can be punished even if it is in the privacy of your own home.

Personal Jurisdiction (PJ) Waiver

Can be waived • Voluntarily litigating on the merits waives any objection to lack of PJ (a general appearance - person did not apepar) • A defendant waives any objection to personal jurisdiction (consents to the court's jurisdiction) by substantial participation on the merits before raising that objection. • This includes almost anything other than challenging jurisdiction.

THE TRIAL PROCESS - Jury Jury Selection | Peremptory challenges

Can generally be made for any reason, including hunches • Exception: Neither side can challenge jurors on the basis of race or sex or sexual orientation or religion (Batson doctrine) • Each side is statutorily limited in the number of peremptory challenges.

Citizenship of the Parties - Corporations

Can have several citizenships simultaneously

"IT" IIED - 3rdP Bystander

Can recover for IIED if present at the time of the conduct, perceives the conduct, and suffers distress that results in bodily injury (i.e., physical manifestation of the distress).

Searches Incident to Arrest Arrest at home

Can search the suspect and his immediate arrest area

Searches Incident to Arrest Arrest on the street

Can search the suspect and his wingspand

Exceptions to the Best Evidence Rule Public Records

Can use a certified copy instead of the original

Enforcements 3. Enforcement of Foreign Decrees

Custody and visitation orders between states are enforceable under the Full Faith and Credit Clause if the other state's decree has been registered in the state seeking enforcement. Generally, a local court cannot modify an out-of-state decree, unless (i) the foreign court declines jurisdiction and the local court has proper jurisdiction, and (ii) the out-of-state party is given sufficient notice of the hearing in the local court.

Defenses to Contract Formation—The "D" in "All Contracts Don't Stink." "Triple M, Double I, UD"

Seven Defenses: 1) Misunderstanding 2) Incapacity 3) Mistake 4) Fraud/Misrepresentation/Nondisclosure 5) Duress 6) Illegality 7) Unconscionability

Mistake of Fact Insanity test - M'Naghten

Defendant either did not know the nature of the act or did not know that the act was wrong because of a mental disease or defect

"IT" Assault

Defendant engages in an act that: • Causes reasonable apprhension of an imminent harmful or offensive bodily contact; and • The defendant Intends to cause apprehension of such contact or to cause such contact itself.

Mistake of Fact Insanity test - Irresistible Impulse

Defendant has a mental disease or defect that prevents the defendant from controlling himself

Speedy Trial Rights

Defendants can be injured by the passage of time between an alleged crime and their trial Statutes of limitations give defendants repose. • Statutes of limitations normally begin to run when the crime occurs. • For continuing offenses, the statute of limitations does not begin to run until the end of the offense (e.g., a conspiracy starts on the day of agreement but continues until the conspiracy's purpose has been achieved or abandoned).

Sixth Amendment Questions to Ask:

Did the Sixth Amendment right to counsel attach? Was this a critical stage?

Procedural Due Process—the Right to Notice and a Hearing Life:

Death penalty requires procedural due process

Equal Protection (Race, Ethnicity, and National Origin) Suspect Classifications (Trigger Strict Scrutiny and Arise under Equal Protection) — Race, Ethnicity, or National Origin: School desegregation

De jure (by law) segregation is unconstitutional. De facto segregation is not (usually by residential housing patterns).

Negligence - Licensees Standard of Care

Enters the land with express or implied permission Traditional rule: Land possessor has a duty to either make the property reasonably safe or warn licensees of concealed dangers. • No duty to inspect for dangers • Must exercise reasonable care in conducting activities on the land

Equitable Servitudes Defenses

Equitable defenses are available, including unclean hands (the plaintiff not acting in good faith) and laches (unreasonable delay).

Personal Jurisdiction (PJ) - In Personam Jurisdiction Bases for General In Personam Jurisdiction | Corporations General in personam jurisdiction applies only to?

General in personam jurisdiction applies only to corporations that are essentially "at home" in the forum state. • The state of incorporation; and • The state where the corporation has its principal place of business.

Venue Federal Rule Transfer (one federal court to another)

General rule: transfer is only to a district with proper venue. • Exception: Transfer to a district without proper venue may occur when ALL parties agree. 1) A case brought in a district with proper venue may be transferred for convenience to another district with proper venue. 2) A case brought in a district without proper venue may be (i) dismissed or (ii) transferred to a district with proper venue.

Covenant of quiet enjoyment

Grantor promises that the grantee's possession will not be disturbed by a third-party claim;

Covenant of further assurances

Grantor promises to fix future title problems.

IV. Child Custody

Having custody (i.e., control) of a child can mean having legal custody or physical custody, or both. Either or both of these types of custody can be shared under a joint custody arrangement

Implied Easement by Estoppel Result

If reliance was detrimental to the second neighbor, the first neighbor is estopped from withdrawing permission, in effect creating an easement.

Establishment of Religion - Access to Public Facilities by Religious Groups

If school buildings are open to various groups club meetings or additional classes, then they must be open to religious groups on the same grounds.

Installment Land Contract Traditional rule:

If the buyer breaches (i.e., misses a payment), the seller keeps the installment payments made and the property.

Motion for Judgment as a Matter of Law (JMOL) Credibility of a witness

If the case turns on this issue, then there is a dispute as to an issue of material fact and the motion for JMOL will be denied; the issue is for the jury

Division of Property (3) Marital Property

In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Some states subject all property owned by either spouse to equitable distribution (i.e., the "hotchpot" approach). The definition of marital property is typically broadly applied and includes retirement benefits and, under some circumstances, equity in nonmarital property. Classification of the appreciation in nonmarital property will typically depend on whether it remains separate property and if the appreciation can be attributable to spousal labor. Title to the property is immaterial. If a party claims that an asset is nonmarital and not subject to equitable distribution, then the burden is placed on that party to prove the assertion.

Kidnapping Malicious Burning Elements - Malice

Intent to act in a way that will cause burning, or is substantially likely to do so

Junior interests

Interests acquired after the interest that is being foreclosed. They are extinguished by the foreclosure.

The Exclusionary Rule 5½ Exceptions - Attenuation in the causal chain

Intervening events and the passage of time can remove the taint of the unconstitutional conduct.

What happens if someone assigns the same rights twice?

It depends on whether the assignee has paid consideration for the rights: o If the rights are assigned without consideration, the assignment is generally revocable and the last assignment controls. o If the rights are assigned for consideration, then the first assignment for consideration is typically irrevocable and will hold Limited exception: A later assignment will take priority if the second assignee does not know of the initial assignment and is first to obtain payment or a judgment (i.e., a bona fide purchaser for value without notice)

Issue Preclusion (Collateral Estoppel) Same Issue of Fact

It does not matter if the two suits involve entirely different claims, so long as there is a common issue of fact.

Substantive Due Process Fundamental Rights Privacy - Contraception

It is a fundamental right for everyone, whether married or not, to purchase contraceptives.

Multi-Party Litigation | Permissive Joinder of Parties

Joinder by plaintiff is governed by Rule 20.

Multi-Party Litigation | Compulsory Joinder of Parties

Joinder is about what defendants can compel plaintiffs to do and is governed by Rule 19. 1. Whether bring in a necessary party? Yes: Next question - NO: Proceed 2. Whether it is feasible to add her? Joinder Fesible? Yes: Must be joined - No: Court decides whether to move on or throw the whole thing out 3. Court decides

Negligence: Sharing Liability Among Multiple Defendants

Joint and Several Liability

Bench Trial

Judge is required to make findings of fact on the record and state conclusions of law.

g. Social Security

Just no

Dominant Estate:

Land benefit by the easement

V. MARITAL AGREEMENTS

Marital agreements are subject to the principles of contract law, just as other legal agreements are. When you see a bar exam question dealing with marital agreements and a violation of contract principles, be sure to raise the issue as you would in a contracts question.

Remedies | 3. Money Damages

Money damages are the typical remedy in contract law

Remedies Lmts on Ex. Damg. | 1. Expectation Damages

Must be proven w/reasonable certainity o Also arises with an unproven business venture—trouble proving lost profits from a consistent sales track record

Spousal Privileges Exceptions

Neither of the spousal privileges apply when: • One spouse is suing the other; or • When one spouse is charged with a crime against the other spouse or the children of either of them.

Deed Execution - Signature Must the deed be witnessed or notarized?

No

Does the description of a deed have to be a legal description?

No

Is a LL responsible to make repairs cause by tenant's actions?

No

Miranda Warnings - Magic Words

No magic words: As long as the substance of the Miranda warnings is communicated, it will be sufficient

Arrests and Seizures of Persons

Police can approach anyone in a public place, and unless the encounter escalates to a seizure, there is no real constraint on what the police can do and no protection against what they discover (e.g., "tailing" a suspect, canvassing a neighborhood and asking questions).

Procedural Due Process—the Right to Notice and a Hearing Deprivation

Notice and a hearing are not required when there is an accident. Random negligence by a state employee does not constitute a deprivation of life, liberty, or property (e.g., death by a municipal garbage truck). Deprivation requires the intentional taking away of life, liberty, or property.

Personal Jurisdiction (PJ) - In Personam Jurisdiction Bases for General In Personam Jurisdiction | Corporations Are incorporation and principal place of business the only bases for general jurisdiction over a corporation?

Probably yes. The Supreme Court has suggested that there might by some "exceptional cases" where a corporation might be deemed "at home," and subject to general jurisdiction. However, there have been no cases as of yet.

Diversity - Requirements Exceptions

Probate and domestic actions cannot be brought in federal court under diversity jurisdiction even if the normal requirements are satisfied.

Procedural Due Process—the Right to Notice and a Hearing If life, liberty, or property is being taken by the government, what process is due?

Procedural due process is variable, and the types of hearings can range from casual to very elaborate.

Owners' Associations

Property owners belong + pay dues to an association or board

Appeals - Interlocutory Orders Writ of Mandamus

Provides for immediate appellate review of an order that is an abuse of authority

The Double Jeopardy Clause Protections

Provides three separate protections: • Protection against prosecution for the same offense after acquittal • Protection against prosecution for the same offense afterconviction • Protection against multiple prosecutions or punishments for the same offense 1. Defining the "Same Offense" 2. The Attachment and End of Jeopardy

Interrogations - 5th Amendment

Provides, among other things, that no person shall be complied in any criminal case to be a witness against himself.

Defamatory Constitutional Requirements Types of plaintiffs - Public Official

Public official—a person who has substantial responsibility or control over a government office, including a political candidate

Rape - Intent

Rape is a general-intent crime; voluntary intoxication cannot be used as a defense

Class Actions - Dismissal or Compromise (Settlement)

Requires judicial approval

Is There a Duty? Categories of plaintiff

Rescuers vs. Crime Victims

Procedural Due Process—the Right to Notice and a Hearing If life, liberty, or property is being taken by the government, what process is due? -- Timing of the hearings:

Sometimes, a hearing must occur before the deprivation. • Examples include: Terminating welfare benefits; non-emergency revocations of driver's licenses. Sometimes, the hearing can occur after the action, so long as the hearing is prompt and fair. • Examples include: Terminating disability benefits; disciplinary suspension from a public secondary school.

Equal Protection - Fundamental Rights Right to vote—one person Exception

Special purpose governments—A highly specialized governments (e.g., for distribution of water rights) can have a franchise based on that special purpose (e.g., acreage or water entitlements).

i. Stock options

Stock options acquired during the marriage are marital property even if they will not be exercised until after the marriage.

UCCJEA 7. Enforcement of Another State's Orders d. Law enforcement

The UCCJEA allows any law-enforcement official to take any lawful action to enforce a custody order or obtain the return of a child (i) if the official believes that the person holding the child has violated a criminal statute, or (ii) if requested to do so by a court of law.

E. Modification of Child Support - Voluntary Reduction

The amount of child support generally may not be reduced simply because of a voluntary reduction in the obligor's pay. In these circumstances, the court will usually set child support obligations based on the obligor's earning capacity, which is the amount that the person could realistically earn under the circumstances in consideration of the person's age, mental health, and physical condition. However, in some jurisdictions, a voluntary reduction of the obligor parent's income may justify a reduction of child support obligations if certain conditions are met. All jurisdictions allowing a modification due to voluntary reductions in the obligor's income require the obligor parent to show that the reduction was made in good faith and not for the purpose of depriving the child or punishing the custodial parent. Some courts require an additional finding that the child will not suffer a significant hardship from the modification.

What if the seller breaches but acted in good faith?

The buyer can only recover out-of-pocket expenses.

Common-Law Murder Four Kinds of Malice - felony murder

The death occurred during the commission or attempted commission of a dangerous felony - BARRK: Burglary, Arson, Robbery, Rape, Kidnapping • Deaths caused by other felonies get the label of misdemeanor manslaughter • Felony murder can involve 4 requirements

Deed Execution - Signature What if the signature is forged?

The deed is void, even if the purchaser is a BFP.

Easement in Gross

The easement benefits the holder personally. - In an easement in gross, there is no dominant estate, only a servient estate. - Traditionally, easements in gross were not transferable, but now courts allow the easement to be transferred if there is intent for it to be transferable

Timing of the filing of a finacning statement

The financing statement will be effective on the date of filing. A financing statement is generally effective for five years and may be continued for another five years by filing a continuation statement within six months prior to the expiration of the statement.

Interrogations - 5th Amendment Statements Made by an Individual | "Custodial"

The person being questioned has been arrested or is not otherwise free to leave(e.g., in the back of a police cruiser). • If not in custody, no warning is required. Any statement (or silence) can be used. • Someone who is already imprisoned is not necessarily treated as "in custody" for purposes of custodial interrogation. The prisoner is not "in custody" if he is free to be taken back to his cell.

Who has priority? Proceeds from a PMSI in goods

The priority of a PMSI in goods generally extends to the identifiable proceeds of the original collateral, but only as to proceeds in which the security interest is perfected when the debtor receives possession of the collateral or within 20 days thereafter.

Character Evidence - Criminal Evidence

The prosecution is not allowed to introduce the bad character of the defendant

Identification Procedures Admissibility - In-court identification

The prosecution must establish by clear and convincing evidence that the witness would have identified the defendant even without the suggestive lineup.

3. Property-Settlement Agreement

The purpose of a property-settlement agreement is to settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued. As with a separation agreement, a court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud.

Implied Covenant of Quiet Enjoyment:

The tenant can withhold rent when the landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and the tenant is constructively evicted.

Exceptions to the Best Evidence Rule Admission by a party

The testimony, either in court or deposition, or a written statement of the party against whom the evidence is introduced

Cumulative zoning

The traditional approach in which residential use is permitted everywhere, commercial use is restricted to some areas, and industrial use is allowed in the fewest areas.

Regulation of Unprotected and Less Protected Expression

There are some categories of speech that can be regulated because of content. 1. Obscenity: Defined by the rule of "S" 2. Incitement 3. Fighting words 4. Defamation 5. Commercial Speech

Identification Procedures Types of Procedures

There are two kinds of identification procedures: photo arays & lineups • Photo arrays: Neither the defendant nor his lawyer has the right to be present, but police must turn over the array to the defendant. • Pre-indictment lineups: Defendant has no right to counsel. • Post-indictment lineups: Defendant has a right to have attorney present. If violated, evidence that the witness identified the defendant at the lineup must be excluded.

D. Division of Property

There are two methods relating to the distribution of assets in the United States: community property and equitable distribution.

What if you are in both universes?

There are two rules 1. "All or nothing rule" - You cannot be in 2 universes at the same time, so mixed K must fall into one universe or the other, an exception is the divisble K: the agreement is divided into two mini-K 2. "Prodominate rule" - Does a good or service play a bigger role?

Hearsay Exceptions - Declarant's Availability Immaterial

These exceptions do NOT require that the declarant be unavailable.

Speech by Government Employees - Exception

This general rule does not apply to confidential or employment policy employees (e.g., the President's cabinet officers).

Defenses "IT" | Self-Defense - Duty to retreat

Traditionally, most courts required retreat before one could use deadly force. Most jurisdictions state that you need not retreat before using reasonable, proportionate force. **These are called "stand your ground" laws.**

Substantive Due Process Fundamental Rights

Triggers the strict scrutiny test under both due process and equal protection 1. Due Process versus Equal Protection 2. Travel 3. Voting and Ballot Access 4. Privacy 5. Second Amendment - Right to bear arms

The Double Jeopardy Clause The Attachment and End of Jeopardy - Mistrial

Two kinds of mistrials: • Manifest necessity: Defendant can be retried [Ex: Hung jury, attorneys misbehavior] • No manifest necessity: Defendant cannot be retried by that jurisdiction

Land Sale K's Exceptions

Two main exceptions: • Part performance; • Detrimental reliance (also called estoppel).

Products Liability - Strict Products Liability Defective Product | Design defect

Two tests: (1) Consumer Expectation test (2) Risk-utility test The more technical the product is, the more likely it is that experts will be required and the risk-utility test will apply.

Physician-Patient Privilege

• Not recognized under federal law, but recognized by many states • Statements made by a patient to a doctor for the purpose of obtaining medical treatment

Prohibited Legislation - Ex Post Facto Laws

Unconstitutional to expand criminal liability retroactively, either by creating a new crime that applies retroactively to past conduct or by increasing the penalty for past conduct.

Automatic Perfection

Under some circumstances, a security interest is automatically perfected upon attachment like PMSI in Consumer goods

PRETRIAL PROCEDURES - The Initiation of Charges

Under the Fifth Amendment's Presentment Clause, all federal felony charges must be initiated by indictment by a grand jury unless the defendant waives indictment. • An indictment requires grand jury to believe the defendant committed the crimes charged. The Fifth Amendment Presentment Clause has not been incorporated to the states, so states can choose whether to proceed by grand jury indictment or by information • If proceeding by information, there must be a preliminary hearing before a neutral judge to determine whether there is probable cause.

Tangible Evidence | Oral Statements

Voices and recordings may need to be authenticated as to the identity of the speaker

Who has priority? Perfected security interest versus perfected security interest

When there are two or more perfected secured parties with rights in the same collateral, the first to party to either file a financial statement or perfect has priority.

Agreements B/W Unmarried Cohabitants 2. Property Division Between Unmarried Cohabitants

When there is no express contract, courts will generally provide for equitable distribution of property based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.

Third-Party Beneficiary Contracts

Whether a third party can sue to enforce a contract made by two other people 1. Identify the Parties 2. Types of Third Parties 3. Revoking Third-Party Rights

Can a landlord put a provision in the lease prohibiting the tenant from making improvements to the property?

Yes

Foreclosure Methods - Deficiency Is the mortgagor responsible if the sale produces less than the mortgagor owes?

Yes. In that situation, the court can issue a deficiency judgment for the remaining balance.

Subject-Matter Jurisdiction: Supplemental Jurisdiction

a federal district court may exercise supplemental jurisdiction over state-law claims that the court would not otherwise have subject matter jurisdiction to hear, as long as the claims are part of the same case or controversy as the claims over which the court has original jurisdiction · Generally, a federal court may exercise supplemental jurisdiction over claims brought by or against additional parties such as third-party defendants, parties who are required or permitted to be joined in the case and intervenors

Negligence - Standard of Care | Physical characteristics

modified standard—particular physical characteristics are taken into account; defendant is compared with a reasonably prudent person with like characteristics

Injunction Notice Issues

a form of relief that requires a defendant to do something (i.e., a mandatory injunction) or prohibits a defendant from doing something (i.e., a prohibitory injunction). • After the court has fully heard the case, it can issue a permanent injunction.

Competence Juror as Witness - FRE 606(b):

a juror may not testify as a witness in an inquiry into the validity of a verdict or indictment as to: • Any statement made during deliberations; • Any incident that occurred during deliberations; or • The effect of anything upon any juror's mind

Competence Juror as Witness - FRE 606(b) | Exceptions

a juror may testify after trial about whether: • Extraneous, prejudicial information was improperly brought to the jury's attention; - E.g., provided with inadmissible evidence • An outside influence was improperly brought to bear on a juror; - E.g., a juror was bribed or threatened • A clerical or technical error was made in entering the verdict onto the verdict form; or • A juror made a clear statement that he relied on racial stereotypes or animus in convicting a defendant

Is There a Duty? Categories of plaintiff - Rescuers

a person who comes to the aid of another is a foreseeable victim. • Cardozo: "Danger invites rescue."

Types of Invasion of Privacy - Appropriation of the Right to Publicity

a property-like cause of action when someone (1) appropriates another's name or likeness (2) for the defendant's advantage (3) without consent, and (4) causes injury The appropriation must be exploitative, but it need not be commercial

Slander

a statement that is spoken

Defenses "IT" | Consent

a. Express consent b. Implied consent c. Capacity

Negligence: Causation Cause in Fact - Loss of chance of recovery (medical misdiagnosis) Loss of chance doctrine

if a physician negligently reduces the plaintiff's chance of survival, then that plaintiff can recover for the lost chance of recovery. • Plaintiff cannot recover the entire amount of damages; but can recover the portion that represents their lost chance of survival

Types of Seizures During a Terry Stop

an officer can pat-down a detainee for weapon but cannot frisk for evidence. • If the pat down reveals objects whose shape makes their identity obvious, the officer can seize those objects (i.e., it's obvious that the objects are contraband). • If probable cause develops during a Terry Stop, the officer can then make an arrest.

The question tells you that a certain officer is appointed by Congress (e.g., the Speaker of the House)

and is therefore under legislative control. Then, someone proposes legislation that gives the officer executive power. Once the officer is under legislative control, any attempt to give the officer executive power is unconstitutional.

Invasion of Privacy Defenses - Qualified and absolute privilege

applicable to "false light" and "public disclosure" claims

Specific In Personam Jurisdiction - In Rem Jurisdiction The res

may be any property real (e.g., land) or personal (e.g., bank account).

Types of Invasion of Privacy - False Light

defendant (1) makes public facts about the plaintiff, (2) that place the plaintiff in a false light, (3) which would be highly offensive to a reasonable person

"IT" Trespass to Land

defendant intentionally causes a physical invasion of someone's land

"IT" Intentional Infliction of Emotional Distress (IIED)

defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress

Equal Protection - Non-Suspect Classifications (Age and Wealth) - Age

discrimination in employment is barred by statute, but it is not a suspect or quasi-suspect classification under the Equal Protection Clause.

Psychotherapist-Patient Privilege Exception

does not apply if the communication was: • The result of a court-ordered exam; or • Taken as part of a commitment proceeding

Impleader (Third-Party Practice) Subject-Matter Jurisdiction - Supplemental jurisdiction

does not extend to claims by the original plaintiff against the impleaded third-party defendant (because those would be claims by a plaintiff against a person made party under Rule 14). • Plaintiff cannot make a claim against the third-party defendant UNLESS complete diversity is met (or there is federal question jurisdiction for the claim).

Intentional Misrepresentation (Fraud)

established by proof of the following six elements: 1. False Representation 2. Scienter 3. Intent 4. Causation 5. Justifiable Reliance 6. Damages

Negligence: Breach of Duty — Custom Generally

evidence of custom admissible, but not dispositive. Most boats have a radio - but not you must find them negligent.

Default | Application of the Proceeds From a Disposition Treatment of a deficiency

f, after the required payments and applications of proceeds have been made, there is a deficiency, then the obligor generally is liable for the deficiency.

Negligence: Breach of Duty — Custom Physicians Modern Trend

national standard

Negligent Misrepresentation Defenses

negligence defenses can raised

A subsequent purchaser who bought the property without notice of the prior purchase, provided that the prior purchaser had not recorded at the time of the subsequent purchase

notice statute

"IT" Assault - Bodily Contact

not required

Land Use - Lateral Support Rights

o A neighboring landowner cannot excavate so as to cause a cave in (i.e., subsidence) on an adjacent owner's land.

Strict Liability - Animals Wild Animals Dangerous propensity

owners are strictly liable for the harm arising from the animal's dangerous propensities.

Defenses "IT" | Defense of Property - Force to regain possession of land CL

reasonable force permitted

Termination Without Trial | Summary Judgment Partial summary judgment:

summary judgment can be granted for the entire case, or only for certain parties, certain claims or defenses, or certain issues.

Words in the future tense

that indicate the parties agree to get married at a later date are not valid to show intent.

Certification of Pleadings - The signature certifies

that there is an appropriate factual and legal basis for filing.

Negligence: Causation Cause in Fact Multiple or indeterminate causes

the "but-for" test can be problematic in some cases • Common problematic circumstances • "Substantial factor" test • Alternative causation • Concert of action

"IT" Battery - Contact Harmful or Offensive Contact

the contact can be direct, but need not be

Mistake of Fact MJ

the defendants has the burden of proving insanity either by a preponderance of the evidence or clear and convincing evidence.

Slander Damages

the plaintiff must prove special damages (requires a showing of economic loss); exceptions include statements communicating slander per se: • Commission of a serious crime • Unfitness for a trade or profession • Having a loathsome disease • Severe sexual misconduct

Products Liability - Strict Products Liability Defective Product | Design defect - Consumer Expectation test

the product is defective in design if it is less safe than the ordinary consumer would expect.

Products Liability - Strict Products Liability Defective Product | Design defect - Risk-utility test

the product is defective in design if the risks outweigh its benefits; must show that there is a reasonable alternative design - You don't need an expert to explain to you why something else would work

Character Evidence - Criminal Evidence Victim's character | Opens the door

the prosecution can introduce evidence that the victim is not violent using reputation or opinion, but not specific acts. • The prosecution can then introduce evidence that the defendant has the same trait that he or she accused the victim of having.

Perfection is not required for:

the secured party to have rights against the debtor. The secured party has rights against the debtor if the security interest has attached (see above). Perfection is relevant for determining a secured party's rights against third parties (such as other secured parties).

Defenses to Defamation Privileges - Absolute privileges

the speaker is completely immune from liability for defamation; includes statements made: • In the course of judicial proceedings; • In the course of legislative proceedings; • Between spouses; and • In required publications by radio and TV (e.g., statements by a political candidate that a station must carry and may not censor)

Defenses to Defamation Privileges - Conditional privilege

the statement is made in good faith pursuant to some duty or responsibility; includes statements made: • In the interest of the defendant (e.g., defending your reputation); • In the interest of the recipient of the statement; or • Affecting some important public interest

Recordig Acts - Inquiry Notice

when a reasonable investigation would have disclosed the existence of prior claims.

Liability Insurance Exception

when evidence of insurance coverage is relevant for some other purpose • E.g., might be relevant to show control

Negligence: Vicarious Liability

when one person is held liable for another person's negligence

"IT" Intent - Transferred intent

when the intent to commit one tort satisfies the required intent for a different tort; this applies when a person commits: • A different intentional tort against the same person that he intended to harm; • The same intentional tort against a different person; or • A different intentional tort against a different person.

Recordig Acts - Actual Notice

when the subsequent grantee has real, personal knowledge of a prior interest;

Sixth Amendment Right to Counsel vs. Fifth Amendment Miranda Right Sixth Amendment applies

whether you are in custody or not • Fifth Amendment Miranda right applies to custodial interrogation for any charge, but not to non-custodial interrogation

Rule Interpleader

• Authorized by Rule 22 • Remedy available in a lawsuit otherwise within the court's jurisdiction

Kidnapping Malicious Burning Elements

• Malice • Burning • Another Person • Dwelling

Intentional Interference with a Contract Nature of the contract

• Must be a valid contract • Cannot be terminable at will

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Political Questions Examples

non-justiciable political questions include: • Guarantee Clause (protecting the republican form of government); • Foreign affairs (e.g., opening or breaking off diplomatic relations with another country); • Impeachment procedures; and • Political gerrymandering (drawing districts to establish a political advantage of one party over another)

Remedies Lmts on Ex. Damg. | 3. Mitigation

o A breached-against party must take reasonable steps to reduce damages from breach. o If a party refuses to mitigate, the law will calculate damages as if the party did mitigate. o The defendant bears the burden of proving a mitigation failure. o Mitigation efforts must be reasonably similar to the original contract.

Common-Law Murder Four Kinds of Malice

1) intent to kill 2) intent to inflict serious bodily harm 3) abandon or depraved heart 4)

False Pretenses: Another Variation of Larceny

The defendant obtains title to someone else's property through an act of deception. [Paying w/forged check]

Defamation Constitutional Limitations on Damages Private individual and matter of public concern

plaintiff can recover only actual damages unless she shows actual malice

"IT" Conversion Damages

plaintiff can recover the chattel's full value at the time of conversion

Libel Damages

plaintiff may recover general damages (i.e., recovery without prove of measurable harm)

Defamation Constitutional Limitations on Damages Private individual but NOT a matter of public concern

plaintiff may recover general damages, including presumed damages, without proving actual malice.

Defamatory Constitutional Requirements Constitutional limitations - Private individual | Matter of public concern

plaintiff must prove that the statement is false and that the person who made the statement was negligent with respect to the falsehood (should have known the statement was false)

Invasion of Privacy Damages

plaintiff need not prove special damages; emotional or mental distress is sufficient

Negligence Defenses: Comparative Fault Pure comparative negligence

plaintiff's recovery is reduced by plaintiff's percentage of fault - Even if the P is more at fault, they still get a cut

Inventory

" includes goods, other than farm products, that are held for sale or lease; are furnished under a service contract; or consist of raw materials, works in process, or materials used or consumed in a business. This term usually refers to goods that are consumed in a business Example 3: Gasoline used to run the machines in a factory

Consideration (and Related Theories)—The "C" in "All Contracts Don't Stink."

1. Bargained-For Consideration 2. Modification 3. Substitutes "BMS"

Conflict of Law

"Conflict of laws" is the part of each state's law used in cases with connections to multiple states to determine which state's laws will determine the parties' rights. Conflict of law rules tend to favor applying their own law. if a case is transferred, the law of the transferor (first) state controls as long as venue is proper in the first court.

Has the Statute of Frauds been Satisfied?

1. By performance 2. by writing Exact reuiqresments differ b/w parallel universe

Types of Invasion of Privacy - Public Disclosure of Private Facts

(1) Defendant publizes a matter concerning the private life of another; and (2) The matter publicized: • Is highly offensive to a reasonable person; and • Is not of legitimate concern to the public. This tort is difficult to prove because courts broadly define "legitimate public concern"

Free Exercise of Religion - Religious Conduct Exception

"Ministerial Exception"— First Amendment requires a ministerial exception to employment laws. • Complete exception to the no-accommodation rule • Non-discrimination employment laws cannot be applied to ministers. • First Amendment precludes claims concerning the employment relationship between a religious institution and its ministers. • The federal government cannot regulate employment relations between a religious institution and its ministers • The term "minister" was construed broadly

Implied Easements Four Kinds

(1) Easement by necessity; (2) Easement by implication (easement by prior use); (3) Easement by prescription; (4) Easement by estoppel.

No such thing as a " ____________________________" crime

"Thought" Wanting or hoping to commit a crime is not itself a crime.

Hearsay Exception - Declarant Unavailable

"Unavailable" if the declarant: • Is exempted from testifying on grounds of privilege; • Refuses to testify; • Lacks memory of the subject matter; • Is dead or too ill; or • Is absent and cannot be subpoenaed or otherwise made available Not considered unavailable if a party wrongfully renders the declarant unavailable for the purpose of preventing testimony Unavailability alone does not make a declarant's out-of-court statement admissible.

Intentional Interference with a Contract

(1) A valid K existed between the plaintiff and a third party; (2) Defendant knew of the contractual relationship; (3) Defendant intentionally interfered with the contract, resulting in a breach of K; and (4) The breach caused damages to the plaintiff

UCC 2-207(2) Additional term "A" Three "No"

(1) Both parties are merchant (2) new term does not materially alter the deal (3) Intitial offer did not expressly limit acceptance to its terms; and (4) offeror does nto reject/object w/in a reasonable time to the new term It is very difficult for the new terms in teh acceptance to govern the K

Implied Easement by Implication Conditions that Must be Met

(1) Common ownership: A large estate owned by one owner (2) Before severance: The owner of the large tract uses the land as if there's an easement on it. We call this a quasi-easement. It's "quasi" because an owner can't have an easement over her own land. (3) After severance: Use must be continuous and apparent at the time of severance. (4) Necessity: Use must be reasonably necessary to the dominant estate's use and enjoyment. **:"Reasonably" necessary is a lesser standard than "strictly" necessary.**

Liability of mortgagor/borrower | Mortgagor remains personal liable after the transfer unless:

(1) Lender/mortgagee releases mortgagor; or (2) Lender modifies the transferee's (buyer/new owner) obligation. • Due-on-sale clause • Due-on-encumbrance clause

Products Liability - Warranties Implied warranties

(1) Merchantability (2) Fitness for a particular purpose

Intentional Misrepresentation (Fraud) - False Representation

(1) Must be about a material fact (2) Can involve deceptive or misleading statements (3) Can arise through concealing a material fact (4) Generally, no duty to disclose material facts to other parties; may be an affirmative duty if: • There is a fiduciary relationship; • The other party is likely to be misled by statements the defendant made earlier; or • The defendant is aware that the other party is mistaken about the basic facts of the transaction, and • custom suggests that disclosure should be made.

Slander of Title

(1) Publication; (2) Of a false statement; (3) Derogatory to the plaintiff's title; (4) With malice; (5) Causing special damages; and (6) Diminishes value in the eyes of third parties.

Performance PER | How do you distinguish an agreement that is not integrated from one that is completely or partially integrated?

(1) look for a merger clause (evidence of complete integration) - if there is one then you good to go (2) Courts may also ask whether, under the circumstances, an extrinsic term of the agreement would "naturally be omitted" from the writing. If so, it may not violate the parol-evidence rule and can be introduced as evidence if it does not contradict the writing. (3) UCC universe is more forgiving Presumes that a writing is, at most, only a partial integration—unless the parties would have certainty included a disputed term in the writing

Two ways to bind a successor to an original party's promise

(1) real covenant (2) equitable servitude

Negligence: Vicarious Liability Respondeat Superior - Scope of employment— detour

(Minor deviation from the scope of employment)—the employer is liable.

UCC 2-207(3)

- Parties might fail to make a K but still act as though there is an agreement (e.g., exchange goods for money) - Under UCC 2-207(3) only terms supplied by the UCC default rules

Immplied-in-fact Contracts

- You can communicate an acceptance w/o writing or speaking - This communication by gestures/actions is called an "implied in fact" K

"IT" Battery - Intent

***What has to be intended is the contact, not the offense*** The doctrine of transferred intent applies to battery.

Mod CS: (2) Termination of Support - Emanicpation

**Additionally, support may be terminated if a child is emancipated before the age of majority. To be emancipated, a minor child must be established as a self-supporting individual beyond the sphere of influence of his parents or independent of parental control. The mere employment of the child does not, by itself, establish emancipation. Also, the birth of a child by an unemancipated child does not result in an automatic emancipation and termination of support. However, the support rights of an employable child are contingent on the compliance by the child with reasonable parental demands; an employable child who fails to comply risks loss of parental support. **EXAM NOTE: If there is a question as to whether a minor child has been emancipated, discuss the totality of the circumstances. Emancipation of a minor is fact-specific.**

UCC Knock-out rule "A"

- Arises when the accpetance has a different term from initial offer (as oppossed to just an additional) - MIN: wehn different term does not govern, the intitial offer controls the terms - MJ: "knock" both of the different terms; neither term will govern and the general gap filling provisions of the UCC will apply

Judicial Notice Doctrine Facts that are not subject to reasonable dispute:

- Generally known within the territorial jurisdiction of the court; or - Accurately and readily determined by sources whose accuracy cannot reasonably be questioned

Compulsory Counterclaims - Diversity

- If counterclaim raised by a defendant, then it is not barred by any of the plaintiff's diversity supplemental jurisdiction exclusions. - Amount of compulsory counterclaim USUALLY does not matter

Creating a legal Offer "All"

- Objective test - Outward appearance of words and actions matters - not secret intentions. - Two points to look out for: 1. Whether an offeror displays an objectively serious intent to be bound - "reasonable standard. 2. An offer must usually be directed to a specific offeree. in other words, you cannot accept an offer unelss it is directed at you. - There is a limited exception where contest offers or reward offers that promise something to anyone who accomplishes a certain task.

Liability of subsequent transferee

1) "Assumes" the mortgage 2) Takes "subject to" the mortgage

Contract Modification "C" | CL Exceptions "PUP"

1) A change in performance ; 2) A third party promising to pay; or 3) Unforeseen difficulties that would excuse performance. Promising partial payment for release from a debt obligation - ask whether the debt is currently due and undisputed. If so, the modification NOT binding

Default | Application of the Proceeds From a Disposition

1) Cash proceeds 2) Treatment of a surplus or deficiency 3) Transferee's Rights

"IT" Battery

1) Defendant causes a harmful or offensive contact with the person of another; and 2) Acts with the intent to cause that contact or the apprehension of that contact.

Methods of Perfection

1) Filing of a financing statement 2) possession of the collateral 3) Control 4) Autmoatice perfection (temp/permanent) 5) Statute

Mens Rea—The Common Law States of Mind Specific Intent - FIAT

1) First-degree murder: not most murders; on the MBE, the question will expressly state if a defendant is charged with first-degree murder 2) Inchoate crimes: "CATS"—conspiracy, aiding & abetting, and solicitation 3) Assault with attempt to commit a battery 4) Theft offenses: e.g., larceny, embezzlement, forgery, burglary, and robbery The main reason to memorize the FIAT crimes is that there are some defenses—most notably voluntary intoxication and unreasonable mistake of fact—that are available only for specific-intent crimes.

Attorney-Client Privilege Exceptions

1) Future crime or fraud • If a client communicates to a lawyer for purposes of getting help with what the client knows or should know is a crime or fraud, the communication is not privileged. 2) Disputes between the lawyer and the client

Speedy Trial Rights Two constitutional provisions that protect against delay

1) The Due Process protects against pre-accusation delay. It's relatively toothless, as long as the limitations period has not run. 2) The Speedy Trial Clause of the Sixth Amendment protects defendants against delay that occurs between the time of arrest or indictment (whichever comes first) and the time of trial.

Miranda Warnings - The police must cease questioning if either of the following occurs:

1) Invoking the right to remain silent 2) Invoking the right to counsel

Procedural Due Process—the Right to Notice and a Hearing Consists of two questions

1) Is life, liberty, or property being taken? 2) If life, liberty, or property is being taken, what process is due?

Speedy Trial Rights A court faced with a Speedy Trial Clause claim looks at four factors:

1) Length of the delay; 2) Reason for the delay; 3) Whether the defendant assert his right to a speedy trial; and 4) Risk of prejudice to the defendant

Mistake of Fact Four Different Tests for insanity

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

Is the Contract in the Statute of Frauds World?

1) Marriage—a contract made in consideration of marriage (like a prenup) 2) Suretyship—a contract promising to guarantee the debt of another 3) One year—a contract that by its terms cannot be performed within one year from its making 4) UCC—applies to goods contracts for a price of $500 or more 5) Real property—a contract for the sale of an interest in real property

Equal Protection (Race, Ethnicity, and National Origin) Suspect Classifications (Trigger Strict Scrutiny and Arise under Equal Protection) — Race, Ethnicity, or National Origin: How to show Discriminatory purpose

1) May be explicit on the face of the statute or 2) may be proved by a history of discriminatory application, or 3) by extrinsic evidence about the purposes of those who passed the law.

Defense of Formation | 2. Incapacity

1) Minors/Youths (under the age of 18) 2) People who are mentally ill—two standards: • The person cannot understand the nature and consequences of his actions; or • The person cannot act in a reasonable manner in relation to the transaction (if the other side knows or has reason to know this). 3) Very intoxicated persons (if the other side knows or has reason to know this)

State Taxation of Interstate Commerce Non-discriminatory taxation is valid if the following two requirements are met:

1) Must be a substantial nexus between the taxing state and the property or activity to be taxed • "Substantial nexus" does not require any type of physical presence. 2) Must be a fair apportionment of tax liability among states

Class Actions - Prerequisites

1) Numerosity (i.e., too many parties to be joined conventionally); 2) common questions of law or fact; 3) typicality of claims by the class representatives; and 4) Adequacy of representation Burden is on the proponent of class certification to establish that these prerequisites are met

Judicial Power Limitations Exception If you can't sue a state, then whom can you sue?

1) Suing Officer| Injunctive relief—you can always get injunctive relief simply by enjoining the appropriate state officer (e.g., sue the state attorney general) • Exception: cannot enjoin state judges or clerks for violating the law. The remedy would be filing an appeal. 3) Money damages—you can also sue an officer for damages personally for some kind of constitutional tort Damages from the state treasury are barred (unless the state consents or Congress expressly says so to enforce individual rights).

Robbery Requirement

1) Taking; 2) Another person's property; 3) Without his consent; 4) With intent to deprive him of it permanently; and 5) The taking occurs from the victim's person or in his persence 6) Either by violence or putting the victim in fear of imminent physical harm **Immediately before, during, after**

You can distinguish assignment from a third-party beneficiary contract because you will typically see two steps in an assignment:

1) The formation of a contract; and 2) The transfer of the benefits of the contract from an original counterparty to some third party.

THE EXECUTIVE POWER AND INTERBRANCH RELATIONS The Powers of the President—Domestic Few powers that are exclusively executive and, therefore, not subject to statutory control:

1) Pardon Power 2) Veto Power 3) Appointment and Removal of Executive Officers

Injunction Notice Issues Ways to stop behaviors

1) Preliminary Injunction 2) Temporary restraining order (TRO)

Six implied covenants in the general warranty deed

1) Present covenants 2) Future Covenants Present - Entering into the deed Future - After the deed has been created

Once a default has occurred, the secured party may:

1) Seek possession of the collateral and, in order to satisfy the obligor's outstanding obligation, either: · Sell the collateral; or · Retain it in full or partial satisfaction of the obligation; 2) Initiate a judicial action to obtain a judgment based on that obligation; or 3) Subject to statutory limitations, pursue any course of action to which the debtor and obligor have agreed.

Presentation of Evidence - Mode and Presentation of Evidence Form of Questions—Leading Questions | Exceptions

1) To elicit preliminary background information not in dispute; 2) The witness has trouble communicating due to age or infirmity; or 3) When you call a hostile witness or adverse party

Remedies | 2. Anticipatory Repudiation - If a party clearly and unequivocally repudiates, the nonbreaching party has two options

1) Treat the repudiation as a breach and sue immediately for damages BUT , if you have completed the entire performance and are only waiting for payment, YOU CANNOT SUE EARLY. 2) Ignore the repudiation, demand performance, and see what happens

For the security interest to be enforceable against the debtor under attachment, three conditions must coexist:

1) Value has been given by the secured party; 2) The debtor has rights in the collateral; and 3) The debtor has authenticated a security agreement that describes the collateral, or the secured party has possession or control of the collateral pursuant to a security agreement.

Intoxication Defenses - Ask two questions

1) Was the intoxication voluntary or involuntary? 2) Is the charged crime a specific-intent crime or a general-intent crime? • Specific-intent crimes (FIAT or MPC statute with "purposely"): Can use either voluntary or involuntary intoxication as a defense, if the defendant could not maintain the state of mind necessary for the offense • General-intent crimes: Can use only involuntary intoxication as a defense

Performance PER | Situations in which the PER does not apply to bar earlier evidence:

1) Will not bar evidence relevant to a defense against contract formation (duress, mistake, fraud, etc.) 2) Even if a writing is completely integrated, a party can introduce evidence of a 2nd seperate deal. 3) Even if a writing is completely integrated, a party might be able to introduce evidence of a prior communication that is designed to interpret an ambiguous term in the final agreement.

Negligence: Breach of Duty — Res Ipsa Loquitur Traditional Elements

1) does not ordinarily occur unless negligence; 2) It was caused by an agent or instrumentality within the precise instrumentality of the defendant; and 3) It was not due to any action on the part of the plaintiff

The determination of priority involves two steps:

1) idenftify the status of each claimant; then 2) Apply the appropriate priority rule

When would the court allow restitutionary recovery under a Quasi-K? "Mug for either the opportunity or an excuse"

1) measurable benefit on the defendant; 2) P acted w/o gratuitous intent (acted w/o intent for consideration); and 3) unfair to let the defendant retain the benefit because either (i) d had an opportunity to decline the benefit but knowingly accepted it, or (ii) the plaintiff had a reasonable excuse for not giving the defendant such an opportunity to say no (e.g., because of an emergency)

Negligence: Causation Cause in Fact

1. "But-for" test— 2. Multiple or indeterminate causes 3. Loss of chance of recovery (medical misdiagnosis)

Third Main Question in Contract Law: What are the remedies for breach?

1. Constructive condition of exchange (CCE) 2. Anticipatory Repudiation 3. Money Damages 4. Limits on Expectation Damages 5. Special Problems with Expectation Damages 6. Reliance Damages 7. Restitution Damages 8. Liquidated Damages 9. Punitive Damages 10. Specific Performance/Injunction

Equitable Servitudes Governance

1. Declaration 2. Powers

Steps for a hearsay problem:

1. Determine whether the statement is hearsay by definition. • Look for an out of court statement. • Determine whether it is being used for the truth of the matter asserted. 2. See whether it falls within the definition of non-hearsay. 3. Determine whether the declarant is unavailable in order to use that set of hearsay exceptions. 4. See whether the remaining exceptions might allow admission of the hearsay statement.

Recordig Acts - Inquiry Notice has two common situations whee a subsequent grantee will put on inquiry notice

1. Dude on the land: When there is someone else living on or using the land; had the subsequent grantee investigated the land, he would have discovered the person in possession; 2. Mentioned interest: When there is an interest mentioned in the deed to some other transaction; had the subsequent grantee acquired, he would have discovered the interest.

Creating an Easement - Two methods

1. Express Easements 2. Implied Easements

The Confrontation Clause (Sixth Amendment)

1. Face-to-Face Confrontation 2. Out-of-Court Statements

Two important categories of Subject Matter Jurisdiction

1. Federal Question Jurisdiction 2. Diversity Jursidiction

Hearsay Exception - Declarant Unavailable Exceptions

1. Former Testimony 2. Dying Declarations 3. Statements Against Interest 4. Statements of Personal or Family History 5. Forfeiture by Misconduct (Declarant Unavailable Due to Party's Wrongdoing)

HOW TO SET UP ESSAY:

1. General Definitions 2. Attachment 3. Perfection 4. Priorities 5. Default

Personal Jurisdiction (PJ) Must always ask two questions

1. Has the basis for exercising PJ over an out-of-state defendant been authorized by statute or by rule of court? • State Law • Long Arm 2. Is the particular basis for exercising personal jurisdiction permitted by the due process Clause of the US Constitution? • Federal • On a civil procedure essay involving personal jurisdiction, remember to ask and answer both of these questions.

Notice and Service of Process Regardless, these Federal Rules for service are always allowed:

1. In-hand personal delivery; 2. Leaving the summons at the defendant's dwelling or usual place of abode with a person of suitable age and discretion; 3. Delivery of the summons to an authorized agent; and 4. For persons in foreign countries, service can be made by registered mail, return receipt requested

Equitable Servitudes Three types

1. Owners' Associations 2. Condominiums 3. Cooperatives

Implied Easement by Estoppel

1. Permission: Starts with a permissive use (e.g., the first neighbor permits the second neighbor to use her land). This is a license. 2. Reliance: Continues, when the second neighbor estopped on the first neighbor's promise Reliance, must be reasonable and in good faith; Look for facts where the second neighbor invested money in reliance on the first neighbor's promise (e.g., made improvements to the easement). 3. Permission withdrawn: Finally, the first neighbor withdraws permission.

Four elements of Implied Covenant of Quiet Enjoyment for a constructive eviction

1. Premises were unusable for their intended purposes (i.e., breach of the covenant of quiet enjoyment); 2. The tenant notfies the landlord of the problem; 3. The landlord does not correct the problem; and 4. The tenant leaves the premises after a reasonable amount of time has passed.

Land Use - Water Rights Basic Approaches

1. Riparian Rights 2. Prior Appropriation

Recordig Acts Notice Statutes

1. Rule: A subsequent purchaser wins if she acquires without notice of a prior, unrecorded conveyance. 2. Key language: "In good faith" or "Without notice"

Recording Acts Race Statutes

1. Rule: First to record wins, even if the subsequent purchaser had notice of a prior, unrecorded conveyance. 2. Key language: "First recorded" or "First to record"

G. Enforcements

1. Sanctions 2. Habeas Corpus Proceedings 3. Enforcement of Foreign Decrees

The Powers

1. The Commerce Power 2. The Taxing and Spending Power 3. Anti-Commandeering 4. The War and Defense Powers

Two Component Parts of Mortgages

1. The note: Borrower's promise to repay the loan/debt; 2. The mortgage: Instrument that provides security for the note. Put it together: If the borrower defaults on the loan, then the lender can force a foreclosure sale to satisfy the outstanding debt.

Jurisdiction Requirements

1. There must be some physical act in the world - Act can be speech 2. Act must be voluntary_ (i.e., willed by the defendant) - Involuntary act does not satisfy the actus reus requirement 3. The failure to act can be sufficient actus reus

Claim Preclusion (Res Judicata) Three Requirements

1. There must have been a final judgment on the merits in the first suit; 2. The second suit must be between the same parties or their successors in interest; and 3. The second suit must involve the same claim or cause of action.

Defenses to Defamation

1. Truth 2. Consent 3. Privileges

Identification Procedures

1. Types of Procedures 2. Admissibility

Exceptions to the Best Evidence Rule

1. Unavailable 2. Public Records 3. Voluminous writings 4. admission by a party

What is acceptance without communication?

1. Unilateral award offers or contests 2. Unilateral offer - performance can be seen 3. A past history of silence serving as acceptance - reasonable 4. States in K

Common Non-Hearsay Uses

1. Verbal Acts or Legally Operative Facts 2. Effect on the person 3. State of Mind

Prohibited Legislation - Bill of Attainder

A bill of attainder is a legislative punishment imposed without judicial trial and is unconstitutional.

Character for Truthfulness or Untruthfulness Criminal Convictions (FRE 609) - Pardon

A conviction may not be used for impeachment if the witness has been pardoned or received a certificate of rehabilitation if the action was based on a finding of innocence or the witness has not been convicted of another felony.

Negligence Elements

1. duty—an obligation toward another party 2. breach—the failure to meet that obligation 3. causation—cause in fact (actual cause) and proximate cause (legal cause) 4. damages—the loss suffered Approximately half of the Torts questions on the MBE test the topic of negligence When analyzing answer choices to negligence questions, look for the elements. For instance, if there is no duty, then you can dismiss answer choices involving breach, causation, or damages.

The two cases do NOT abandon notice pleading

1. they curtail it by empowering district judges to dismiss, before discovery 2. complaints that they think are obviously unfounded (i.e., lack of factual detail, if it tells rather than shows) • The examiners cannot be demanding about how you apply these cases. You would have to go deep into the plaintiff's substantive claim, which is not what procedure questions test generally. The most likely way that you will be tested on Iqbal and Twombly is issue spotting. You will be expected to recognize that, even under notice pleading, unconvincing and implausible allegations with no factual support should be dismissed.

Judicial Power Limitations Exception

11th Amendment and preexisting concept of state sovereign immunity • You cannot sue a state for money damages in either state or federal court unless consents or the U.S. Congress expressly says so to enforce 14th Amendment rights. • Note: 11th Amend. protects states and state agencies, not local governments (i.e., no immunity for cities, counties, or towns). • Note: A state's sovereign immunity applies in both federal and state court unless the state consents, or Congress expressly says so to enforce Fourteenth Amendment ("14th Amend.") rights.

UPA 3. "Frozen Embryo" Issues

A "frozen embryo" is the result of in vitro fertilization that is cryogenically preserved. Issues concerning ownership and parentage are complex and continue to be unresolved. Additional problems surface when one of the individuals who provided the egg or sperm dies, or the individuals get divorced. Absent an agreement, the decision as to whether or not transplantation will take place is made by weighing the interests of the parties. Ultimately, resolution of these issues may turn on whether the embryo is classified as a person or as property.

Purchase Money Security Interest (PMSI)

A PMSI gives lenders a security interest in goods that have been purchased with funds borrowed from them or purchased on credit from them. A PMSI is subject to special rules with respect to perfection and priority (discussed later). A PMSI may exist only with respect to two types of collateral— goods (including fixtures) and software

Buyers in the Ordinary Course of Business (BOCB)

A buyer in the ordinary course of business (BOCB) takes the goods free of a security interest that the seller gave to the creditor in the goods, even if the security interest is perfected and the buyer knows of its existence

Buyer versus secured party with a perfected security interest

A buyer of collateral subject to a perfected security interest generally takes the collateral subject to that interest, unless the secured party has authorized its sale free of the security interest

A. Ceremonial Marriage

A ceremonial or statutory marriage requires that the parties obtain a license to get married. The couple must meet several requirements to obtain this license. 1. Age 2. Waiting Period 3. Premarital Medical Testing 4. Expiration date

Compulsory Counterclaims

A compulsory counterclaim is lost if not pleaded in the current action. • Now or never A counterclaim is compulsory if it arises out of the same transaction or occurrence as the claim to which it responds. Raised or lost forever Supplemental jurisdiction generally applies Statute of Limitations (SOL): Filing of the original complaint tolls the SOL for the original claim AND any compulsory counterclaim(s).

Consumer Buyer

A consumer buyer of consumer goods takes free of a security interest, even if perfected, unless prior to the purchase, the secured party filed a financing statement covering the goods

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue - Redressability

A court can remedy or redress the injury. • If the injury is in the past, the remedy is damages. • If future injury is threatened, the remedy is an Injunction. • Past injury does not give automatic standing to seek an injunction for future injury. To get an injunction, you must show the prospect that it will happen again.

UCCJEA 1. Initial Custody Determination (Home-State Jurisdiction)

A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state: i) Is the child's home state (the state in which the child has lived with a parent or guardian for at least six consecutive months prior to the custody proceeding, or since birth, if the child is less than six months old); or ii) Was the child's home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

Affirmative covenant:

A covenant to pay money (e.g., homeowners' association fees). Traditionally, such fees did not touch and concern, but the modern trend is to say that these fees do touch and concern.

THE TRIAL PROCESS - Jury Sixth Amendment Right to a Jury Trial

A defendant has a right to jury trial for all serious offenses, for which the authorized punishment is more than 6 months. • The Sixth Amendment right to counsel attaches in misdemeanor cases only if a sentence of incarceration is actually imposed.

Character Evidence - Criminal Evidence Defendant's good character

A defendant is permitted to introduce a pertinent trait of character.

Character Evidence - Criminal Evidence Victim's character

A defendant may bring evidence about the victim's character. • May introduce evidence of a pertinent trait of the victim • As a practical matter, only happens in a homicide or assault case (violent cases) when the defendant is arguing that the victim started the altercation (self-defense). • Rape Shield Laws—the defendant in a sexual assault case may NOT introduce evidence of the alleged victim's promiscuity

Invasion of Privacy Defenses - Consent

applicable to invasion of privacy torts

Error in the debtor's name

A financing statement that fails to accurately contain the debtor's name may be "seriously misleading" and therefore not effective to perfect the security interest.

CS: (2) Paternity - Equitable Estoppel

A husband who is not the biological father of his wife's child may be estopped from denying his obligation to pay child support. Under the doctrine of equitable estoppel, the husband may be required to pay child support when: i) There is a representation by the husband that he would provide for the child; ii) The wife relied on his representation; and iii) The wife suffered an economic detriment as a result of the reliance (e.g., loss of opportunity to obtain child support from the child's biological father). Although many jurisdictions recognize the doctrine of paternity by estoppel, some jurisdictions will permit it to be used only as a basis to prevent a party from denying his obligation to support as opposed to preventing a biological father from asserting his rights. However, some states have recently begun placing greater emphasis on the interests of men who have been erroneously identified as fathers. In these jurisdictions, a husband's child support may be terminated, and paternity may be disestablished, without regard to a child's financial interests.

SM: Types of Support - a. Lump sum

A lump-sum spousal support award is a fixed amount and may not be modified in the absence of fraud.

UCCJEA 6. Temporary Emergency Jurisdiction

A jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection. If a prior custody order is in existence, then the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court. If there is no prior custody order, then the emergency order remains in effect until a decision is rendered by the child's home state. If no future determination is made, then the emergency order continues in full force and effec

Permission - Transferring a landlord's interest:

A landlord does not need the tenant's permission before transferring her interest. The new landlord is bound by terms of the existing lease.

Regulation of Unprotected and Less Protected Expression Obscenity - Minors

A lesser legal standard can be applied to minors, but the government cannot ban adult speech simply because it would be inappropriate for minors.

Future advance mortgage:

A line of credit used for home equity, construction, business, and commercial loans (often referred to as a "second mortgage")

Defenses - Religion

A litigant that challenges a divorce on religious grounds will fail in all jurisdictions.

Burden of persausion

A party must convince the jury to decide the case in its favor.

Title States (Minority)

A mortgage does sever a joint tenancy and converts it into a tenancy in common

Equitable Servitudes Governance "Powers" - Basic Test

A new rule must be reasonably related to further a legitimate purpose of the association (think: rational basis test).

Parental Consent 2. Upbringing

A parent has a right to raise her child as she sees fit. This right of parents extends to decisions relating to the religious upbringing of a child. However, like religious beliefs, personal beliefs can conflict with the child's best interests. Parental decisions may be limited if they jeopardize the "health or safety of the child, or have a potential for significant social burdens." The spread of preventable, contagious illnesses is a "significant social burden." States are permitted, under their police powers, to require vaccinations and to refuse admission to public school for students who fail to receive required vaccinations. Such statutes are not subject to constitutional challenge based on a violation of parental rights.

D. Rights and Obligations of Children 4. Limits on Parental Authority

A parent's authority over his child is not absolute. Laws are in place to protect children from harm, whether or not that harm is intentional. Child abuse and neglect laws, as well as compulsory school attendance statutes, are in place to ensure that a child is well taken care of and supervised appropriately. As has been discussed, the state may terminate parental rights despite parents' constitutional right to raise their children when it is in the best interests of the child. Grounds for termination include abandonment, neglect, failure to support, or inflicting serious harm, among others. The state must prove these allegations by clear and convincing evidence because of a parent's right to due process.

Mod CS: (2) Termination of Support

A parent's obligation to pay support usually ends when the child reaches the age of majority (typically 18 years of age). Some jurisdictions, however, have the authority to order support beyond the age of majority when the child is in college. An additional exception applies when an adult child is unable to support himself due to circumstances such as a mental or physical disability. In most jurisdictions, termination may also take place if the child marries, the parental rights are terminated, the child commences active duty in the military, or the parent or child dies. A court, however, does have the right to order that a parent obtain insurance on his life for the benefit of the children to provide future support after his death.

Enforcements 1. Sanctions

A party seeking enforcement of child-custody and visitation orders can request assistance through the court system. The court hearing the case may impose a variety of sanctions, including compensatory visitation, attorney's fees, court costs, fines, and jail time. Tort damages may also be awarded to a parent for the period of time that the child is wrongfully out of the parent's custody. In most states, a party cannot be denied parenting time for his failure to pay child support, or based merely on a child's wishes.

2. Voidable Marriage - Annulment (a) Age

A party who is under the age of consent to marry and who did not seek the consent of his parents or the court may apply to have the marriage annulled. If the partner, however, is of legal age to marry, then the partner may not attack the validity of her marriage to an underage person. In many states, the declaration of validity may also be brought by the underage party's parents or legal guardian. Many courts, however, will prohibit the filing of an annulment based on age once the party who was not of legal age has attained such age and continued to freely cohabit with the other party as a married couple.

Defenses "IT" | Self-Defense - Injuries to bystanders

A person acting in self-defense is not liable for injury to bystanders as long as the injury was accidental and the actor was not negligent toward the bystander.

1. Void Marraige - Annulment (c) Mental capacity

A person must be able to understand the nature of the marriage contract, and its duties and responsibilities, to enter into a marriage. Note that a marriage contract entered into during a lucid moment is valid, as long as the person understood the nature of the contract at the moment the contract was executed.

Accomplices Exception

A person protected by a statute cannot be an accomplice in violating the statute

Purchase money mortgage

A person takes out a loan for the purpose of purchasing property

Shelter Rule

A person who takes from a bona fide purchaser protected by the recording act has the same rights as her grantor.

Negligence: Special Rules of Liability Pure Economic Loss

A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover in negligence If the plaintiff can prove personal injury or property damage, then the plaintiff can recover those damages and also economic damages.

f. Future interest

A possible future interest in property (e.g., inheritance) is not distributable.

1. Premarital Agreements

A premarital (also known as "prenuptial" or "antenuptial") agreement is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death. As with any contract, consideration is required. A valid marriage is sufficient consideration for a premarital agreement. Many jurisdictions have held that a premarital agreement must expressly state its applicability to divorce proceedings. Additionally, clauses relating to child custody and support are unenforceable. When there is an issue as to which state's law will govern whether a premarital agreement is enforceable, most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage. Some states apply the law of the state where the agreement was executed.

B. Validity of Marital Agreements

A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged. The agreement may be amended or revoked after the marriage, provided both parties sign a written agreement to that effect. The burden of proving its invalidity is by clear and convincing evidence. The UPAA requires that the party against whom enforcement is sought prove (1) involuntariness or (2) that the agreement was unconscionable when it was executed, that she did not receive or waive fair and reasonable disclosure, and she "did not have, or reasonably could not have had, an adequate knowledge" of the other's assets and obligations. Voluntariness, fairness, and asset disclosure are relevant to enforceability in all jurisdictions, even in states that have not adopted the UPAA. However, in non-UPAA jurisdictions, courts can refuse to enforce on any ground. If the marriage is voided, a premarital contract is enforceable only if it will avoid an inequitable result. Must consider: 1. Full Disclosurer 2. Fair and Reasonable 3. Voluntary 4. Impoverished Spouse 5. Modification of Marital Agreements

Division of Property (6) Modification of a Property Division Award

A property division under either approach is not modifiable because it is based on the parties' assets at the time of divorce. Changes in the parties' circumstances after divorce are not considered once the award has been entered.

Other Improper Questions Facts not in evidence

A question that assume facts not in evidence

Real Covenants | Writing

A real covenant is subject to the Statute of Frauds, so it must be in writing.

Negative covenant:

A restriction on use will usually touch and concern because they restrict what you can do with your land. Watch out for promises that are unenforceable such as discriminatory covenants, as these do not touch and concern.

Default | Application of the Proceeds From a Disposition Transferee's Rights

A sale of the collateral gives the buyer at the sale all of the debtor's rights in the collateral. If the transferee/buyer acts in good faith (i.e., honesty in fact and the observance of reasonable commercial standards of fair dealing), then the disposition discharges the security interest being foreclosed and any subordinate security interests and liens. However, the transferee takes the collateral subject to any security interests that were senior to the security interest foreclosed.

Notice of Disposition

A secured party is generally required to send an authenticated notification of disposition. The notification is required to be reasonable as to its content, the manner in which it is sent, and its timeliness.

Type of Disposition

A secured party may dispose of the collateral publicly or privately. A secured party may purchase the collateral at a public sale, but she cannot do so at a private sale unless the collateral is of a kind that is customarily sold on a recognized market (e.g., the New York Stock Exchange) or the subject of widely distributed standard price quotations. A secured party cannot purchase the collateral at a private sale when the prices are individually negotiated or when items are not fungible in a recognized market.

Control over the Collateral

A secured party may perfect a security interest in in investment property, deposit accounts, letter‐of‐credit rights, electronic chattel paper, or electronic documents by taking control of the collateral. The security interest remains perfected only while the secured party retains control.

Default | Application of the Proceeds From a Disposition Cash Proceeds

A secured party must apply, or pay over for application, cash proceeds of a disposition in the following order 1) Reasonable expenses for collection and enforcement, including reasonable attorney's fees and other legal expenses; then 2) Satisfaction of obligations secured by the security interest; then 3) Satisfaction of any subordinate security interests, provided that the junior secured party made an authenticated demand for proceeds before distribution of the proceeds is complete; then 4) The remainder of the proceeds to the debtor.

Control over the Collateral for a Deposit Account

A security interest in a deposit account can be perfected only by control. A secured party has control of a deposit account if: The secured party is the bank with which the deposit account is maintained; The bank, secured party, and debtor agreed in writing to follow the instructions of the secured party; or The secured party becomes the bank's customer with respect to the deposit account.

Filing a Financing Statement

A security interest in any collateral, except a deposit account, money, or letter‐of‐credit rights that are not a supporting obligation, may be perfected by filing a financing statement. The primary objective of filing is to give interested parties notice of the existence of the security interest.

Proceeds from Collateral

A security interest in collateral automatically attaches to identifiable proceeds from the sale, exchange, or other disposition of the collateral.

Timing of Perfection

A security interest is perfected upon (i) attachment of that interest and (ii) compliance with one of the methods of perfection (such as filing a financing statement).0 In addition, a security interest that is perfected by one method and later perfected by another method without a lapse in perfection is continuously perfected despite the change in method. The date of perfection is the date on which the security interest first became perfected.

After‐acquired collateral

A security interest may apply not only to the collateral that the debtor owns at the time the security is granted, but also to collateral that the debtor acquires in the future. A business may give a bank an interest in "all Inventory now owned or hereafter acquired".

Recording act exception

A senior mortgage may sometimes not get recorded. A junior mortgage that satisfies the requirements of the state recording act may take priority over the unrecorded senior mortgage.

Subordination agreement between mortgagees

A senior mortgagee can agree to subordinate its interest to a junior interest.

Equity of Redemption

o A common law right held by the mortgagor to reclaim title and prevent foreclosure upon the full payment of the debt. o The mortgagor must exercise this right before the foreclosure sale.

SOF UCC Satisfied? | a. Signed writing

A signed writing will satisfy the SOF, but the requirements differ a little: • There is no need to mention the price; • The writing must mention the quantity of goods sold. The contract is only enforceable under the SOF for the quantity mentioned in the writing.

State Regulation and Taxation of Commerce Dormant Commerce Clause - No discrimination against out-of-state interest Exceptions | Subsidies

A state can always choose to subsidize only its own citizens (for example, welfare benefits or in-state college tuition).

State Regulation and Taxation of Commerce Dormant Commerce Clause - No regulation of wholly extraterritorial activity

A state may not regulate conduct occurring wholly beyond its borders

Admissions of a Party Opponent Adoptive Admissions

A statement made by someone else, which is then expressly or impliedly adopted Can sometimes adopt a statement by silence—Requirements: • The party heard the statement and understood it; • The party had the ability to respond; and • A reasonable person similarly situated would have denied the statement.

Common Non-Hearsay Uses - Effect on the listener/hearer

A statement offered to show the effect on the person who heard it

3. Unilateral K ("All")

A unilateral offer to K cannot be revoked by the offeror if the offeree has started to perform. A unilateral K arises from a promise that requests acceptance by an action of hte promisee. Because a unilateral K can be acceptaed only by performance, the law gives the promisee the irght to finish.

CS: (2) Paternity - Unconstituional time limit on a paternity petition

A time limit on the filing of a paternity petition in order to secure support from the purported father is invalid unless there is a reasonable opportunity to pursue such an action and the limit is substantially related to the government's interest in restricting such an action (e.g., prevention of fraudulent claims). Otherwise, the time limit is a violation of the Equal Protection Clause of the U.S. Constitution because it subjects illegitimate children to restrictions not imposed on legitimate children. The suit may be brought by the child or the child's mother. The standard of proof varies by jurisdiction, but it could be as low as preponderance of the evidence or as high as clear and convincing proof.

The most frequently tested rule is for a lease

A transaction in the form of a lease creates a security interest if · lease payments must be made for the full term of the lease and · are not subject to termination and · the lessee has an option to become the owner of the goods for nominal (a small amount of money) consideration at the conclusion of the lease agreement." Although the agreement is called a "lease" and L retained title of the printing press, the actual terms of the agreement created a sale of the printing press to P with a security interest retained by L. Watch out for "leases" and sellers that "retain title" of the goods!

1. Void Marraige - Annulment

A void marriage is treated as if it never happened. It does not need to be judicially dissolved and will not be legally recognized for any purpose. Specifics to consider a. Prior exisitng marriage b. Incest c. mental incapcacity

regulatory taking

A zoning regulation can be considered a taking when it leaves no economically viable use for the property (rare).

VI. RELATIONSHIP BETWEEN THE FAMILY AND THE STATE

A. Adoption B. Adoption Alternatives Under the Uniform Parentage Act (UPA) C. Domestic Violence D. Rights and Obligations of Children

Performance Implied Conditions

A. Constructive Condition Exchange (CCE) B. CL Universe C. UCC Universe: Performance

CONSIDERATION SUBSTITUTES (PROMISSORY LIABILITY) "Please Quasi Help Shawn"

A. Promissory Estoppel (or Reliance) B. Quasi - K C. Half Theory (moral obligation - HELLA Min) D. Seal (ain't a thing no more)

III. FINANCIAL SUPPORT OF SPOUSES AND CHILDREN

A. Spousal Maintenance B. Jurisdiction C. Child Support D. Amount of Child Support E. Modication of Child Support F. Enforcement of Awards G. Tax Consequences of Support

Interbranch Relations - Immunities Judges

Absolute immunity for all judicial acts, but may be liable for non-judicial acts (e.g., employment discrimination).

Defenses to Defamation Privileges

Absolute privileges Conditional privilege CL

Counter offer UCC 2-207 "All"

Acceptance does not need to match the offer

Deeds - Acceptance

Acceptance is generally presumed, provided the transfer is for value.

Devices to Create or Destroy Diversity

Actions that create or destroy diversity are permitted so long as they are not "shams" or fraudulent.

Conspiracy - Modern conspiracy statutes

Add a fourth element: The performance of an overt in furtherance of the conspiracy

Amount in Controversy (AIC) - Aggregation

Adding up smaller claims to exceed $75,000

#CS (2) Other Considerations

Additional factors that the courts consider in determining the amount of support include: i) Ages of the children; ii) Unusual needs and unusual obligations (e.g., special education); iii) Support obligations of the parties; iv) Assets of the parties; v) Medical expenses outside of insurance coverage; vi) Standard of living; vii) Duration of marriage, for spousal support or alimony pendente lite; and viii) Best interests of the child.

Jurisdiction of the Supreme Court Appellate Jurisdiction | Adequate and Independent State Grounds (AISG)

Adequate and independent state grounds refers to the standard used by the Supreme Court to determine if it will hear a case from a state court. The Supreme Court will hear a case from a state court only if the state court judgment is overturned on federal ground

DECLARANT'S AVAILABILITY IMMATERIAL Judgment of Previous Conviction

Admissible to prove any fact that was essential to the judgment

A. Adoption

Adoption is a statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established. Once the adoption has been completed, a new birth certificate with the adoptive parents' names is issued for the child. The records for most adoptions are sealed and kept confidential, but many states allow the adopted child to receive medical information on the birth parents. Additionally, most states have residency requirements for the county in which the adoption will take place and prohibit the payment of money to the natural parents other than costs related to medical care connected with the pregnancy.

Fault - Adultery

Adultery is voluntary sexual intercourse with someone other than one's spouse. Because the details of adultery are rarely known to both parties, it is usually proven by circumstantial evidence. It must be shown that a party had the opportunity and the inclination to commit adultery. The facts of the case must provide enough evidence to conclude that the person was guilty of the adulterous act.

Default | Disposition of Collateral

After default, a secured party may sell, lease, license, or otherwise dispose of all or any of the collateral. Within limits, the secured party may keep the collateral (strict foreclosure) in full or partial satisfaction of the obligation. 1) Commercially Reasonable Std for Disposition 2) Price 3) Time of Dsposition 4) Type of Disposition 5) Notice of Disposition

Amendments to the Pleadings - Types of Amendments By Leave of Court

After the party has amended once, leave to amend must be sought from the court Amendment by leave of court should be freely granted. • Judge must have a reason for denying leave to amend.

1) Age restrictions

All U.S. jurisdictions impose minimum age restrictions on individuals who wish to marry - 18 - Less than 18 they generally requiring parental consent to, and/or judicial approval of the marriage. Statutory age requirements for marriage have withstood constitutional scrutiny. -- the rational-basis test applies to the minimum age requirement to marry, and the state's important interest in promoting the welfare of children by preventing unstable marriages among those who lack capacity is a legitimate state interest

Commercially Reasonable Std for Disposition

All aspects of the disposition of collateral (method, manner, time, and place) must be conducted in a commercially reasonable manner. A disposition is commercially reasonable when conducted: · In the usual manner on a recognized market, such as a stock exchange, that has standardized price quotations for fungible goods; · At the price current in any recognized market at the time of the disposition; or · Otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.

Under Common law how specific must your offer be? "All"

All essential terms must be covered in the agreement. This typically means the parties, subject, price, and quantity.

D. Amount of Child Support

All jurisdictions have adopted child-support guidelines to streamline the process by using objective bases for determining child-support awards. Child-support awards are typically based on income from any source and include wages, interest and dividends, rental income, and other income received, including retirement benefits, capital gains, and Social Security income. The guidelines are applied in all cases regardless of marital status.

Defense of Formation | 3. Mistake - Mutual Mistake

Allows the adversely affected party to rescind if: a) mistake of fact, existing at the time that the deal is made; b) relates to a basic assumption of the contract c) material impact on the deal; and d) The impacted party did not bare the risk of mistake.

Validity of Marital Agreements 5. Modification of Marital Agreements

Although a court may uphold a provision in a marital agreement that prevents modification of property rights, including spousal support, a court may always modify child-support provisions in a marital agreement even if the agreement states that no modifications may be made.

Enforcements 2. Habeas Corpus Proceedings

Although not available for child-custody disputes or visitation rights, a habeas corpus proceeding is a way in which a person who claims to have custody of a child, but who does not have physical custody of the child, can be heard by the court. In addition, during these proceedings, many jurisdictions will revisit the issue of which placement is in the best interests of the child. Less limiting than habeas corpus is a suit in equity action, which enjoins conduct in violation of a custody order. The current trend has been to use suits in equity over habeas corpus proceedings.

V & P Time 1. Third Parties b. Grandparent visitation

Although the majority of jurisdictions have statutes regarding grandparent visitation, they differ among states and often do not guarantee the right to visit. In Troxel, the Supreme Court specifically implicated a fit parent's fundamental right to the care, custody, and control of the children in relation to grandparent visitation. Courts examining the request of grandparents for visitation will focus on the decision of the fit parents, statutory factors, and what is in the best interests of the child.

Takings - Economic impact

An adverse economic impact of the government's action does not necessarily mean there has been a taking (e.g., a new prison built next door to a beautiful, countryside home). Many regulations can dramatically affect the value of property but that does not trigger a right to compensation.

Due-on-encumbrance clause

An acceleration clause when the mortgagor obtains a 2nd mortgage or otherwise encumbers the property.

After‐acquired collateral Exception

An after‐acquired clause is not effective if the collateral is consumer goods, unless the debtor acquires them within 10 days after the secured party gives value.

Implied Easement by Implication

An easement by implication is created by an existing use on a property. If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land's use and enjoyment (as distinguished from an easement by necessity, which requires strict necessity).

Easement Termination - End of Necessity

An easement by necessity lasts as long as the easement is needed. If it is no longer necessary, the easement ends.

Expert Witnesses Basis of Expert Opinions

An expert may base his or her opinion on: • Personal observation; • Evidence presented at trial; or • Information reasonably relied upon by experts in that particular field. - May base opinion on facts that would otherwise be inadmissible at trial - The basis for the expert opinion may not necessarily be admissible unless the probative value of the information in evaluating the expert's testimony substantially outweighs any prejudice.

Expert Witnesses Subject Matter of Testimony

An expert witness may offer opinions or conclusions if: • The subject matter is scientific, technical, or other specialized information; and • It will help the trier of fact understand the evidence or determine a fact in issue. Courts have generally rejected expert testimony about witness credibility.

"IT" IIED - 3rdP Immediate family member

An immediate family member of the victim who is present at the time of the conduct and perceives the conduct may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress.

Defense of Others

An individual has the same right to defend other individuals against a criminal that she has to defend herself.

Appeals - Interlocutory Orders Discretionary interlocutory review

Any interlocutory order is appealable with as of right - no permission to do that • BOTH the trial and appellate courts must agree to allow the appeal. • The appellate court must then agree to accept the appeal.

V & P Time 1. Third Parties c. Unwed biological father

An unwed biological father has a substantive due process right under the U.S. Constitution to have contact with his child. However, this right exists only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child-rearing or providing financial support). In addition, many states have imposed a two-year limit on the establishment of paternity by an unwed biological father. Further, if the mother is married to another man and refuses to join in a paternity petition, then a state may preclude the purported biological father from pursuing the paternity petition.

If the restraint is valid:

Any attempt to alienate the property will be null and void.

THE EXECUTIVE POWER AND INTERBRANCH RELATIONS The Powers of the President—Domestic Few powers that are exclusively executive and, therefore, not subject to statutory control - Appointment and Removal of Executive Officers Who are executive officers?

Anyone who takes action on behalf of the U.S.

Mandatory Disclosures Scope of Discovery Exceptions to Discovery | Evidentiary privilege

Anything covered by an evidentiary privilege is not discoverable. Client lawyer/doctor-patient

Appeals - Interlocutory Orders Class Actions

Appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action.

Land Sale K's Implied Warranty of Fitness or Suitability

Applies to defects in new construction • In most jurisdictions, both the initial homeowner-purchaser and subsequent purchasers may recover damages. • In a minority of jurisdictions, only the original buyer can enforce this warranty. • Generally, suit for breach of this warranty must be brought within a reasonable time after discovery of the defect (but some jurisdictions have a statutory time period).

Defense of Formation | 1. Misunderstanding

Arises when each party attaches a different meaning to the same - Must show: 1) use a material terms that is open to two or more reasonable interpretations (the objective test cannot apply); 2) Each side attaches a different meaning; and 3) Neither party knows, or should know, of the confusion.

Eligible Transactions

Article 9 governs a transaction that creates, by agreement, a security interest in *personal property or a fixture.* In addition, a lease, consignment, agricultural lien, and even a purchase of personal property may be subject to Article 9. Also, a real-property transaction can produce an obligation, such as the promissory note secured by a mortgage, that can be the subject of an Article 9 security interest.

Judicial Power Limitations

Article III lists the kinds of cases that come within the judicial power of the United States— the most important are diversity jurisdiction (i.e., disputes between citizens of different states) and federal question jurisdiction (i.e., cases arising under federal law).

Deed Execution - Signature

As a general matter, the grantor's signature is required for execution to be effective.

Amendments to the Pleadings - Types of Amendments

As of Right By Leave of Court

Mod CS: (3) Jurisdiction for Modification of Support Enforcement

As with enforcement, a child-support order may be registered in another tribunal (e.g., order entered in Mississippi; all parties move to Minnesota; order may be registered in Minnesota). It is important to note, however, that if an aspect of a child-support obligation may not be modified under the law of the state that first imposed the obligation, that aspect of the obligation may not be modified under the laws of any other state.

The Double Jeopardy Clause - The Blockburger test

Ask whether each statutory provision requires proof of an element that the other does not.

SM: (3) Support During Marraige

At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine. A necessary item was something suitable to the parties' station in life, including medically necessary care. Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses, and often refer to them as "family expense" statutes. A minority of jurisdictions have abolished the doctrine as a violation of equal protection rights. In those jurisdictions retaining the doctrine, a creditor may sue either spouse for payment of necessaries, but it may be required to seek payment first from the incurring spouse. Absent separation or divorce proceedings, courts are reluctant to order the payment of support between spouses during their marriage. Courts have cited to the common law doctrine of nonintervention in denying a petition for support while the couple is still married and living together as an intact family.

Scope of a Conspiracy

At common law, each co-conspirator can be convicted both of: 1) conspiracy; and 2) All substantive crimes committed by any other conspirator acting in furtherance of the conspiracy.

Parental Consent 1. Religious Beliefs

At times, the parent's religious beliefs can conflict with what may be in the child's best interests. Often seen in cases in which medical treatment contradicts religious beliefs, the court can intervene, under the theory of parens patriae, to protect a child when necessary medical care is needed to prevent serious harm to the child's health. In some states, there are exemptions to the finding of abuse or neglect that permit the state to order the requisite medical care without finding the parent at fault. Such action by the court is typically taken only when the medical treatment is life-threatening and only after the court balances the risks and benefits of the medical treatment. The home state has jurisdiction if it has been the home state of the child within the six months prior to the beginning of the custody proceeding.

Negligence - Standards of Care for Specific Situation Bailors and Bailees

Bailment—a bailee temporarily takes possession of another's (the bailor's) property. Common law: Complicated rules regarding the standard of care in a bailment; for example: • Bailor must warn a gratuitous bailee of known dangerous conditions • If the bailor receives the sole benefit, then the bailee has a lesser duty. • If the bailee receives a benefit, then he has a higher duty of care; even slight negligence can result in liability.

The Confrontation Clause (Sixth Amendment) Out-of-Court Statements

Basic principle of Crawford: Testimonial statements by witnesses who are not subject to cross- examination at trial may not be admitted unless the witness is unavailable and there has been a prior opportunity for cross-examinations. • Testimonial—made with the primary purpose of ascertaining past criminal conduct • Testimonial statements can only be admitted against a criminal defendant if: - The declarant is now unavailable; and - The defendant had a prior opportunity to cross-examine that declarant. • Statements made for the purpose of getting help (emergency doctrine) should not be considered testimonial. Think of the Confrontation Clause as an entirely separate hurdle for prosecutors

Miranda Warnings

Before conducting custodial interrogations, the police must inform the suspect: • You have the right to remain silent; • Any statement you make may be used against you in court; • You have the right to consult an attorney and to have the attorney present during questioning; and • You have the right to have an attorney appointed if you cannot afford one.

THE TRIAL PROCESS - Jury Jury Selection

Begins with a venire or jury pool • Must represent a fair reflection of the community from which no distinctive group is excluded

Fault - Bigamy

Bigamy, which in most jurisdictions is also grounds for annulment, occurs when one of the parties in the marriage knowingly entered into a prior legal and existing marriage before entering into the current marriage.

Remember: An easement binds ______________________________, whereas a license only binds the ______________________________.

Binds successor; binds licensor

Output and Requirements K "All"

Both are specific enough under the UCC because they provide a formula

F. Enforcement of Awards

Both child and souspal support orders are enforced through 1. Civil Contempt 2. Criminal Contempt 3. Other Sanactions, such as issuing judgments, intercepting tax refunds, Credit reporting, suspending license, seizing property, garnishments

Substantive Due Process Standards of Review

Both substantive due process and equal protection have the same three standards of review. 1. Strict Scrutiny 2. Intermediate Scrutiny 3. Rational Basis

Deeds & Brokers

Brokers can be involved in land sale contracts so long as they do not practice law. • Permissible: Most states permit real estate agents and brokers to prepare a contract of sale. • Impermissible: Real estate agents cannot usually draft a legal document like a deed or mortgage. • Keep in mind: We are looking for the exercise of legal discretion and whether the broker or non-lawyer is giving legal advise.

Impleader (Third-Party Practice) Personal Jurisdiction

Bulge provision: In addition to all other methods for asserting personal jurisdiction, impleader allows the assertion of PJ by service of process anywhere within 100 miles of the courthouse.

B < PL - negligence

Burden (cost of taking a precaution) v. Risk - Probability of harm (Likelihood of loss) x severity of Loss (Damages $ loss would cause)

Burden of Proof

Burden of production Burden of persausion

4) Expiration date

By statute, most U.S. jurisdictions impose an expiration date on a marriage license. A marraige liense will not be issued when: i) One of the parties is married to someone else; ii) The parties are too closely related as defined by statute; iii) The parties entered into the marriage as a sham; or iv) The parties are incapable of understanding the nature of the act. Most jurisdictions further provide that marriage licenses will not be issued when, at the time that the license was sought, one or both parties were under the influence of alcohol, drugs, or another substance that rendered the person(s) incapable, or when a party lacked consent due to duress or fraud. Also yay for gay marraige must recognize

Express Easements Scope "Changes in use"

Changes in use of an easement are tested under a reasonable standard. Presume the parties contemplated both its current use and its future use, which means the future use of an easement must be reasonably foreseeable.

Do Charities need to prove detrimental reliance?

Charities do not need to prove detrimental reliance (the second element) when pursuing a reliance theory to collect on a charitable-gift promise.

C. Child's Right to Support

Child support is the payment by one parent to the other for the support of a common child. The duration of child support varies with each jurisdiction. In all jurisdictions, both parents (custodial and noncustodial), regardless of marital status, are legally required to support their minor children (i.e., unemancipated and 18 years of age or younger).Some jurisdictions, however, continue that obligation through college. Additionally, child support can be continued, even indefinitely, for a child incapable of self-support, provided that the inability to support is linked to a physical or mental disability. The payment of child support is entirely separate from visitation rights. Such rights cannot be denied for nonpayment of support. Parents cannot bargain away child-support payments, regardless of whether they intended to have a child. Parents can enter into private agreements regarding the payments, but they cannot agree to any release or compromise that would negatively affect the child's welfare.

D. Rights and Obligations of Children

Children are provided with special rights and limitations compared to adults. These distinctions are meant to protect children as well as provide them with expanded rights when necessary. In many cases, as with property and contracts, children may convey property or enter into contracts as minors, but upon the age of majority, they have the option of disaffirming the transaction. Conversely, a child does not have the capacity to make a valid will. 1. Right to Consent to Medical Care 2. Liability for Torts and Criminal Acts 3. Emancipation 4. Limits on Parental Authority

4. Children from annuled marriage

Children of an annulled marriage are nevertheless considered marital children.

Citizenship of the Parties - Individuals

Citizen of the state or country of domcile • Must be a citizen of the United States and a domiciliary of the relevant state • Domicile is permanent, (residence + an intent to remain indefinitely) For purposes of jurisdiction, there can only be one legal domicile at a time.

EoA 1. Civil Contempt

Civil contempt requires compliance with a court order. An obligor with the ability to pay may be found in civil contempt and can be sent to jail and held until the amount owed is fully paid. Jurisdictions are currently split regarding whether the appointment of counsel is constitutionally required in civil contempt cases when the defendant is indigent.

Equal Protection - Suspect Classifications Continued Citizenship status

Classifications based upon U.S. citizenship are generally suspect classifications that require a compelling interest

Scope of a Conspiracy Chain Conspiracy

Co-conspirators are engaged in an enterprise consisting of many steps; each participant is liable for the substantive crimes of his co-conspirators

Defenses - Collusion

Collusion occurs when both spouses "conspired to fabricate" grounds for divorce. Collusion defenses are not as common since the adoption of no-fault grounds in many jurisdictions.

Statutory Interpleader

Comes from Federal Interpleader Act and only applies in federal court

Equal Protection - Fundamental Rights Right to vote—Gerrymandering

Comes in two varieties—racial and political 1) Racial gerrymandering 2) Political gerrymandering (drawing districts to hurt one party)

Robbery

Common law robbery is a simple equation: Robbery = larcency + assault

B. Common-Law Marriage

Common-law marriages are defined as marriages when the parties: i) Agree they are married; ii) Cohabit as married; and iii) Hold themselves out in public as married. Unlike with a ceremonial marriage, no ceremony takes place and no license is issued for a common-law marriage. A common-law marriage is not valid if either party was married to someone else at the time that the common-law marriage was entered into.

Division of Property (1) Community Property

Community property is a method for the distribution of marital assets that is used in nine states - The guiding principle behind community property is that marriage is a partnership. Most community-property states require an equal division of the marital property.

"IT" Defenses to private nuisance

Compliance with state or local administrative regulations • Evidence as to whether the activity is reasonable • Not a complete defense "Coming to the nuisance" is NOT a defense • Courts are hesitant to find a nuisance if you moved somewhere knowing about that conduct. • But NOT a complete defense—one factor considered by the court

"IT" IIED - Extreme and Outrageous Conduct

Conduct that exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.

Role of Judge and Jury Preliminary Hearings

Conducted outside the presence of the jury in three circumstances: 1) When the issue is the admissibility of a confession in a criminal trial; 2) When the defendant in a criminal case is a witness and makes that request; and 3) When the interests of justice otherwise require (unfair prejudice to a party)

Jurisdiction of the Supreme Court Appellate Jurisdiction | Limitations on the Supreme Court's appellate jurisdiction

Congress can make exceptions to the Court's appellate jurisdiction (i.e., Congress can effectively control the Supreme Court's docket (its appellate jurisdiction) by legislating exceptions to its appellate jurisdiction).

Judicial Power Limitations Exception | When enforcing individual rights

Congress can override state sovereign immunity. • It can force states to pay money damages for violating individual rights, but it must say so expressly. • Any lack of clarity will preclude damages • Students often ask about this concept. Remember that absent federal override, a state retains sovereign immunity against private actions in its state court and in courts of other states.

The Taxing and Spending Power Spending | Anti-Commandeering

Congress cannot force states to adopt or enforce regulatory programs. It cannot commandeer state and local agencies to implement federal programs.

THE LEGISLATIVE POWER: THE POWER TO ENFORCE THE CIVIL WAR AMENDMENTS Thirteenth Amendment

Congress has broad power to legislate against racial discrimination, whether public or private.

THE LEGISLATIVE POWER: THE POWER TO ENFORCE THE CIVIL WAR AMENDMENTS Fourteenth Amendment

Congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts. • Does not enable Congress to redefine constitutional rights by legislation • Only permits Congress to adopt remedies reasonably designed to enforce individual rights as they have been defined by the courts

Jurisdiction States can only punish crimes having some ____________________________ to the state

Connection to the state For example: • A crime that occurs whole or in part inside the state • Conduct outside the state that involved an attempt to commit a crime inside the state • A punish to commit a crime if an overt act occurred within the state

Defenses - Connivance

Connivance is consent to or participation in the marital wrong, usually adultery (e.g., allowing or benefitting from a spouse's prostitution).

Battery Elements - unlawful

Consent is a complete defense to battery (e.g., boxing match).

Defenses - Consent

Consent is a defense to desertion or adultery.

LL & Tenant | Tenancy at Sufferance - Termination

Consider three ways to terminate: · The tenant voluntarily leaves; · The landlord evicts the tenant; · The landlord rerent to the tenant.

Merger - Inchoate and Completed Offenses Conspiracy

Conspiracy and a completed substantive offense do not merge! • A defendant can be convicted of both conspiracy to commit a crime and committing the crime itself.

Inchoate Crimes

Conspiracy, Attempt, Solicitation

Basic Principles

Constitutional protections apply only to government actions

Regulation of the Content of Expression

Content-based regulations of speech trigger stict scrutiny and are usually struck down. 1. Expressive Conduct (a.k.a. Symbolic Speech) 2. Vagueness and Overbreadth 3. Prior Restraints

Contract Modification "C"

Contract modification might require new consideration to be valid (the pre-existing duty rule) CL vs. UCC

Agreements B/W Unmarried Cohabitants 1. Cohabitation Agreements

Contracts between unmarried persons are invalid if the only consideration is sexual relations. Agreements in which other consideration, such as full-time companionship or cooking, is exchanged for financial support will generally be enforced. These contracts may be express, regarding earnings or property rights, or implied. However, courts are less likely to enforce an implied contract.

Strict Liability Defenses

Contributory Negligence Comparative Negligence Assumption of the Risk

Corporations

Corporations have the same First Amendment right to speak as individuals.

"IT" Trespass to Chattels vs. Conversion

Courts consider the following factors: • The duration and extent of the interference; • Defendant's intent to assert a right inconsistent with the rightful possessor; • Defendant's intent; • Defendant's Good Faith • Expense or inconvenience to the plaintiff; and • Extent of the harm **The more extreme the interference, the more likely the court will find conversion.**

V & P Time 2. Sexual Relationship or Cohabitation

Courts are unlikely to restrict visitation because of a parent's cohabitation with another or a parent's sexual relationship unless the cohabitation has an adverse impact on the children. Although jurisdictions differ in their handling of gay and lesbian relationships, the majority of jurisdictions do not prohibit overnight visitation unless the opposing parent can demonstrate a specific danger to the child's physical or emotional health.

"IT" Private Nuisance Interference

Courts are vague regarding what constitutes an unreasonable interference. • Must be annoying to an ordinary, reasonable person • Someone hypersensitive may not have a cause of action for nuisance. • Someone who is not actually bothered may still have a cause of action for nuisance if it would bother an ordinary, reasonable person. • Courts will also balance the interference with the utility of the nuisance.

V & P Time 3. HIV/AIDS

Courts cannot deny visitation merely because a parent has HIV/AIDS

Juris (3) Issues Relating to Indigent Parties

Courts cannot require that an indigent party pay costs and fees to access the court system. Such requirements are unconstitutional. Although there is no legal right to counsel for indigent parties in divorce proceedings, the court has the discretion to award attorney's fees and costs if the party is unable to afford the services of legal counsel.

Division of Property (3) Marital Property factors in distrbution

Courts consider the following factors in the distribution of property: i) Length of the marriage; ii) Prior marriages; iii) Age, health, earnings, earning potential, liabilities, and needs of both spouses; iv) Contributions to education; v) Needs for future acquisitions; vi) Income, medical needs, retirement of both spouses; vii) Contributions to increases in marital property, including homemaking and child-rearing services; viii) Value of separate property; ix) Reduction in valuation in marital property by one spouse; x) Standard of living; xi) Economic circumstances of each spouse at the time of divorce; and xii) Custodianship of any minor children. In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property. However, dissipation of marital property may be a factor. Dissipation occurs when one spouse uses marital property for his sole benefit after the marriage has irreconcilably broken down, such as the purchase of expensive gifts for a paramour.

Appeals - Interlocutory Orders Full Faith and Credit

Courts in the U.S., both state and federal, must give full faith and credit to judgments rendered by courts of other states, provided that the rendering court had jurisdiction.

CS: (1) Nonmarital Children

Courts now use an intermediate scrutiny standard to analyze the constitutionality of government action, focusing on the purpose behind the distinction between marital and nonmarital children. As a result, child support, government benefits, and wrongful-death claims may no longer be denied to nonmarital children, and nonmarital children may inherit from their father's estate if paternity is established. Paternity may be established through a judicial decree or by other means, such as a man holding himself out as the child's father or consenting to be name on the child's birth certificate.

Negligence Defenses: Assumption of the Risk Implied assumption of risk - Participants in and spectators of athletic events

Courts often hold that a participant or spectator cannot recover because the party knew of the risks and chose to accept those risks

Expert Witnesses Daubert Test

Courts require that the expert: 1) Be qualified by knowledge, skill, experience, training, or education; 2) Base his testimony on sufficient facts or data; 3) Base his testimony on reliable principles and methods; and 4) Apply the principles and methods reliably to the facts of the case.

UCCJEA 4. Exclusive-Continuing Jurisdiction

Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that: i) The parties no longer reside in the state; or ii) The child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the stat

BIC Std 6. Siblings

Courts traditionally avoid separating siblings from each other in order to maintain stability and promote sibling relationships.

Six implied covenants in the general warranty deed 2) Future Covenants

Covenant of quiet enjoyment Covenant of warranty Covenant of further assurances

Six implied covenants in the general warranty deed 1) Present covenants

Covenant of seisin Covenant of the right to convey Covenant against encumbrances

LL & Tenant | Tenancy at Sufferance

Created when a tenant holds over after the lease has ended · Temporary tenancy that exists before the landlord either evicts the prior tenant or rents the property to the tenant (creates a new tenancy with the holdover tenant) · Tenant owes landlord reasonable value of her daily use (i.e., look to rent from prior lease), as well as reasonably foreseeable special damages. · Created by the actions of the tenant alone - no agreement

Mandatory Disclosures Scope of Discovery Exceptions to Discovery | Work-product rule Results

Creates a qualifiedimmunity from discovery that can be overcome only if the party seeking discovery shows: • A need for the document or thing; and • That the information cannot be discoverable.

Claim Preclusion (Res Judicata) Re-litigation of a Sufficiently Identical Claim or Cause of Action | Installment Sale

Creditor must sue for all that is "due and owing" at the time of the suit. • All debt owed at the time of the action is one claim even if it was due in 3 or 4 separate payments. • Future debts or obligations are another claim. • Look out for installment sales contracts that provide that if a purchaser misses a payment, the entire outstanding balance becomes due and owing (i.e., an acceleration clause). In that case, the entire balance is one claim. The seller can and must sue for everything at once or be barred.

EoA 2. Criminal Contempt

Criminal contempt is a specific jail sentence imposed upon an obligor who willingly fails to pay the amount owed. When criminal contempt is sought by the court, the defendant is entitled to additional constitutional protections.

Division of Property (5) Tax Consequences of Equitable Distribution

Equitable distribution payments are not taxed in the same manner as regular income. Property that is transferred between divorcing spouses is tax-free at that time. The transferee's tax basis is the same as the transferor's, and the property becomes taxable when it is sold.

Devices to Create or Destroy Diversity Moving

permitted, even if it is done with the purpose of affecting diversity, so long as the change in domicile is genuine, not a sham

"IT" False Imprisonment - Intent

Defendant must act: • Purpose to confine the plaintiff; or knowing that the plaintiff's confinement is substantially certain to result. • Confinement due to defendant's negligence—defendant will not be liable under the intentional tort of false imprisonment • Transferred intent applies.

Mistake of Fact Insanity test - Durham Rule

Defendant would not have committed the crime but for his having a mental disease or defect (rarely used because so defendant-friendly)

Defense Counsel - Choice of Counsel

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is: • Properly admitted in the jurisdiction (including pro hac vice rules); • Available for trial; and • No conflict or other reason to disqualify the lawyer. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversal. Indigent defendants: Does not have the right to appointment of the lawyer of their choice. • As long as they receive competent assistance, they have received all the Constitution guarantees them.

Negligence: Breach of Duty

Definition—a violation of the reasonable person standard 1. Traditional Approach—Reasonable person standard. Focuses on a common-sense approach of what the reasonably prudent person would do under the circumstances. 2. Cost-Benefit Analysis—Hand Formula (B < PL) (Burden v. Probability of harm x severity of Loss) Do not get hung up on the difference here; it's really just two ways of getting to the same result.

Notice and Service of Process NOT accepted:

Delivery to attorney of record is not proper service unless state law provides otherwise

Fault - Desertion

Desertion (also called "abandonment") results when one spouse, without cause or the consent of the other spouse, voluntarily leaves the marital home with the intent to remain apart on a permanent basis. Most jurisdictions require that the abandonment be for a statutorily designated period of time. Some jurisdictions also find desertion when one spouse forces another out of the marital home, and there is a fear of harm if that spouse returns. If the parties separate by mutual consent, the ground of desertion will not apply.

Negating Mens Rea - Mistakes of Law Key Starting Point

Determine whether the crime is a specific intent crime (FIAT), a general crime, or a strict liability crime.

Land Sale K's Formation - Liability

Determined by the stage where breach occurs o Contract stage: Any liability must be based on a contract provision o Deed stage: Any liability must be based on a deed warranty (doctrine of merger comes in)

Express Easements Scope

Determined by the terms of the easement when it was created - Ambiguous terms - Changes in use - Trespass

Takings - Development permits

Development is often conditioned on "concessions" by the developer, such as building an access road or donating land to a park. Such exactions are valid so long as they can be seen as offsetting the adverse impact of the development.

Defense Counsel - Effective Assistance Performance

Did defense counsel's performance fall below the wide range of reasonable conduct that lawyers might engage in?

Products Liability - Warranties Defenses - Disclaimers

Disclaimers are covered in the Contracts materials.

Subject Matter Jurisdiction: Diversity Jurisdiction Basis for Diversity - Time for diversity determination

Diversity must exist when the complaint is filed. • Does NOT matter that diversity did not exist when the cause of action arose • Does NOT matter that diversity no longer exists when the case comes to trial

B. Divorce and Seperation

Divorce is a legal dissolution of a marriage. Things to consider 1. Residency Requirement 2. Grounds for Divorce 3. Defenses 4. Limited Divorce and Deparate Maintenance 5. Finalizing the Divorce

Personal Jurisdiction (PJ)

Does the court have the power to reach the involuntary party (the defendant)? • Personal jurisdiction is an issue in federal and state court, and rules are generally the same in federal and state court. • Default federal rule—use the long arm statute of the state in which the federal court sits (chief means of asserting PJ over out-of-state defendants). • As a practical matter on the exam, whether the fact pattern takes place in federal or state court, the court must have personal jurisdiction and the rules are generally the same.

Strict Liability - Animals Trespassing Animals

the owner of any animal is strictly liable for reasonably foreseeable damage caused by his animal while trespassing on another's land.

Direct evidence

Equivalent to what it is offered to prove (e.g., eyewitness testimony)

Claim Preclusion (Res Judicata) Re-litigation between the Same Parties | Class action

Each and every number is generally bound by the judgment; they are considered to have had their opportunity in court even if not a named representative. • Damages class action certified under Rule 23(b)(3), a valid judgment does not bind class members who opt out of the lawsuit.

Implied Easements

Easements by Operation of Law; Non-Express Easements • Implied easements are informal; they arise out of factual circumstances. • They are transferable. • They are not subject to the Statute of Frauds. • They are not subject to recording statutes, unless the subsequent purchaser had notice of the easement.

C. Uniform Child Custody Jurisdiction Act (UCCJA)

Enacted prior to the UCCJEA, the UCCJA was established to create a uniform system to resolve interstate custody matters. Although the UCCJA was adopted by all 50 states, by the time of its adoption, Congress had enacted the Parental Kidnapping Prevention Act (PKPA), which conflicted in application with the UCCJA despite its common goal. In its original form, the UCCJA operated on principles that established jurisdiction over a child-custody case in one state and protected a custody order of that state from being modified in any other state as long as the original state retained jurisdiction. Unlike the UCCJEA and the PKPA, the UCCJA did not give first priority to the home state of the minor child. Similar to the PKPA, the UCCJA did not address enforcement of visitation rights. Almost all states have now replaced the UCCJA with the UCCJEA.

Validity of Marital Agreements 4. Impoverished Spouse

Even if a valid agreement has been voluntarily executed and it meets the test for reasonableness, fairness, and full disclosure, the agreement may be set aside if its result winds up leaving one spouse woefully impoverished to the extent that he becomes dependent on the state (i.e., welfare). It is irrelevant if abrogation of the exact terms of the agreement results.

Past Sexual Conduct - Victim's conduct (Rape Shield Laws) Exceptions in a criminal case

Evidence of a victim's past sexual conduct is admissible to: • Show that the defendant was or was not the source of physical evidence, such as semen or bruises; or • Show the victim's past sexual conduct with the defendant to show consent May be admissible in certain circumstances when exclusion would be too unfair to the defendant (exclusion would be unconstitutional)

C. Domestic Violence

Every jurisdiction has some type of statute granting civil relief to victims of domestic violence. Although each jurisdiction has its own definition of what constitutes domestic violence, the definitions typically focus on physical abuse, as opposed to mental or emotional abuse. 1. Scope of Statute 2. Relief Granted

EoA - Enforcement in other Jursidcictions

Every jurisdiction is required to have the Uniform Interstate Family Support Act (UIFSA) in effect as a condition of participating in the federally funded child support programs. UIFSA operates to simplify collection of support payments when the obligor or child resides in a jurisdiction different from the one in which the original order was issued. Once an order is registered in another state, it is enforceable in the same manner and to the same extent as a child-support order issued by the original state. Only the issuing state may modify the original support order; the other state's responsibility is simply to enforce the order. If there is no personal jurisdiction over the obligor, then there is a two-state procedure that can be employed. Under this approach, an enforcement order can be obtained in the other state by filing an enforcement petition in the initiating state that will be forwarded to the other state's court. UIFSA § 203. **EXAM NOTE: The modification and enforcement of interstate child support is always governed by the UIFSA, which has been adopted in every jurisdiction. If more than one state is involved in a question, always discuss the UIFSA. An order that does not comply with the UIFSA is not subject to enforcement under the Full Faith and Credit for Child Support Orders Act of the U.S. Constitution.**

D&S: 2. Grounds for Divorce (a) No-Fault

Every jurisdiction recognizes a no-fault ground for divorce. The majority of the jurisdictions require a party to allege that the marriage is irretrievably broken and there is no prospect of reconciliation (e.g., irreconcilable differences). Despite the terminology, the fact that the discord stems from a curable condition will not prevent divorce on a no-fault ground. About half the states require that the couple be separated for a specific time (e.g., one year) prior to the filing of the divorce action. The fact that one spouse wishes to reconcile may lengthen the time period for obtaining a divorce, but it is not an absolute bar to a no-fault divorce. Most jurisdictions have abolished the traditional defenses to divorce. The only defense would be to deny the ground for the divorce. However, unless both parties agree, this is generally insufficient to prevent the divorce.

Specific In Personam Jurisdiction - Statutes

Every state has a long armstatute. Purpose: Give courts in personam jurisdiction over out-of-state defendants but ONLY for the particular transactions involving that state. • Connection between the state, the defedant, and the lawsuit that creates the requisite minimum contacts and that makes suing the defendant there fundamentally fair. • Some state statutes are very broad, e.g., "the long-arm statute extends as far as the Constitution allows" • Others list specific activities that give rise to jurisdiction

Subsequent Remedial Measures

Evidence of repairs or changes made after an accident is not admissible to prove negligence, culpable conduct, defective product or design, or an inadequate warning.

Mens Rea—The Common Law States of Mind Malice Examples

Examples include: battery, kidnapping, rape, and false imprisonment.

Subject Matter Jurisdiction: Diversity Jurisdiction Minimal diversity (exception to complete diversity requirement)

Exists when any plaintiff is diverse from any defendant, even if other plaintiffs and defendants overlap. • Federal Interpleader Act (statutory interpleader); • Class actions with at least 100 class members and claims worth more than $5 MIL (Class Action Fairness Act); and • Interstate mass torts if at least 75 natural persons have died in one accident and the plaintiffs and defendants are from many different states (e.g., airline crash).

LAND SALE CONTRACTS

Expect questions on the MBE in this area. The land sale contract is one of the most heavily tested subjects in real property.

A ______________________________ easement must be express; it cannot be created by implication.

Expressed. Why? Implied easements arise out of circumstances and a negative right will rarely be created by circumstances

CL Legal and Mental Capacity

For a couple to enter into a common-law marriage, they both must have the legal and mental capacity to do so. To satisfy the legal capacity requirement, they must be old enough and not too closely related. The determination of mental capacity is the same used to determine eligibility to obtain a license in a ceremonial marriage (e.g., they must understand the nature of the act).

Discovery Devices | Enforcement Sanctions - If a party defaults on discovery request:

Failed to: 1. attend own deposition 2. respond to interrogatories, or 3. Respond to a request for documents or things

D&S: 2. Grounds for Divorce (b) Fault

Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder. Most jurisdictions retain some level of fault-based grounds, although some have removed it from the law since the adoption of no-fault grounds. The use of fault-based divorce grounds has decreased dramatically since the adoption of no-fault-based grounds in most jurisdictions, although fault is often considered when awarding maintenance.

Performance PER | First determine...

First, determine what the agreement entails. o If the parties have reduced their contract to a comprehensive writing, then earlier statements or writings related to this agreement are not part of the deal under the PER o Does the PER apply to later written or verbal statements about the deal? No, that's a modification. o Does the PER apply to earlier written documents? yes.

Contract Modification "C" | CL

Follows the preexisting duty rule—a promise to do something that you are already legally obligated to do is not consideration.

Venue Federal Rule Special Provisions

For a case begun in state court and removed to federal court, venue is automatically proper in the federal district where the state court sits, even if that district would not have been proper originally.

Adoption 1. Termination of a Natural Parent's Rights

For an adoption to be valid, the parental rights of the biological parents must be terminated. For those rights to be terminated, one of the following circumstances must occur. a. Voluntary termination b. Involuntary termination c. Approval of adoption

The Powers - The Commerce Power Intrastate | Not within the Commerce Clause

For non-economic, non-commercial activity, Congress can regulate intrastate actions only by adequately demonstrating a substantial effect on interstate commerce (substantial effect is presumed for economic or commercial activity). Thus, Congress cannot regulate purely intrastate, non-commercial, non-economic activity for which a substantial effect on interstate commerce has not been shown.

Debtor's Rights in Collateral

For the security interest to attach to the collateral, the debtor generally must have rights in the collateral. The basic rule is that a security interest attaches only to the rights that the debtor has. A debtor's limited rights in collateral are sufficient for a security interest to attach.

Defenses - Condonation

Forgiveness of a spouse is a defense to a fault-based divorce. There must be knowledge of the misconduct and forgiveness of the misconduct, and the party must resume marital relations with the guilty party. It is typically based on a promise not to engage in the misconduct again. At common law, once an act was forgiven, it could not become future grounds for divorce.

Absent statutory redemption, the purchaser of property at a foreclosure sale takes the property __________ of any junior mortgage and subject to any senior mortgage.

Free and Clear

Notice and Service of Process

Generally means service of a summons and a copy of the complaint on the defendant • Formally gives court jurisdiction over the case • Gives the defendant notice of the action

Attachment

Generally, a security interest that is enforceable against the debtor with respect to the collateral is said to have "attached" to the collateral

D. Rights and Obligations of Children 2. Liability for Torts and Criminal Acts

Generally, children are judged by a more moderate standard than adults when determining the liability for tortious behavior. Criminal acts, as well, generally are limited to adjudication in juvenile courts under juvenile laws. The purpose of this difference is to provide the child with supervision and rehabilitation. Usually, the decision regarding the extent of punishment is dependent on the age of the child; the younger the child, the more likely the court will show leniency.

Default

Generally, default will be the failure of the obligor to make timely payments to the secured party.

Takings - No physical occupation

Generally, no physical occupation means that no taking has occurred - even if they restrict it. Zoning

Does a counterclaim in a diversity action have to meet the jurisdictional minimum of $75,000.01?

Generally, no, if the counterclaim is compulsory.

Who has priority? Proceeds

Generally, the basic rules (e.g., first‐to‐file‐or‐perfect) govern priority if there are conflicting security interests and at least one of those interests is claimed as proceeds. The filing or perfection date for the original collateral is treated as the filing or perfection date for the proceeds.

The Warrant Requirement

Generally, the government needs a warrant to conduct a search if there is a reasonable expectation of privacy.

F. Visitation and Parenting Time

Generally, the noncustodial parent is allowed reasonable visitation (or "parenting time") with a minor child. Because parents have a constitutional right to have contact with their children, the denial of visitation is unusual and typically only an issue when it would seriously endanger a child's physical, mental, or emotional health. The court will, however, place restrictions on the exercise of visitation, such as supervised parenting time or a denial of overnight visits. The parents, by agreement, usually determine the time, place, and circumstances of the visitation. If the parties cannot agree on the circumstances, then the court will determine the particular circumstances surrounding the parenting time.

Procedural Due Process—the Right to Notice and a Hearing Property | How can you tell whether you have an entitlement to a government job or whether you have a mere expectation of government employment?

Government jobs are entitlements only when the government says so—such as by providing a contractual term or discharge only "for cause."

Covenant of warranty

Grantor promises to defend against future claims of title by a third party;

State Regulation and Taxation of Commerce Privileges and Immunities of State Citizenship under Article IV (Comity Clause)

Guarantees the privileges and immunities of state citizen ship - individual right

Homicide

Homicide: The killinh of a living human being by another human being • Animals cannot commit a homicide and killing an animal is not a homicide; • Victim cannot already be dead; • Suicide is not homicide; but assisting someone to commit suicide can be a homicide.

Performance Conditions | 2. Satisfaction conditions

How are these conditions met? It depends on the nature of the performance. Preferred approach—use an objective standard of satisfaction. · If most reasonable people would be satisfied, then the condition is met. • Contracts involving aesthetic taste—such as art or tutoring services—use a subjective standard. · The party can still breach if they claim dissatisfaction in bad faith.

Performance Implied Conds CL | Divisibility

If a contract is clearly divisible, then it will be broken into mini-contracts for the purposes of determining if there has been substantial performance.

UCCJEA 5. When Courts Can Decline Jurisdiction

If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors: i) Whether domestic violence has occurred and is likely to continue in the future, and which state could best protect the parties and the child; ii) The length of time the child has resided outside of the jurisdiction; iii) The distance between the competing jurisdictions; iv) The parties' relative financial circumstances; v) Any agreement of the parties regarding which state should assume jurisdiction; vi) The nature and location of the evidence required to resolve the pending litigation, including the child's testimony; vii) The ability of each state's court to decide the issue expeditiously and the procedures necessary to present the evidence; and viii) The familiarity of each state's court with the facts and issues in the pending litigation. A court may also decline to exercise its jurisdiction if a party has "engaged in unjustifiable conduct," such as wrongfully removing a child from another state.

Destruction of evidence

If a party destroys evidence, there is a presumption that it would have been adverse to that party.

Hearsay Exception - Declarant Unavailable Exceptions Forfeiture by Misconduct (Declarant Unavailable Due to Party's Wrongdoing)

If a party engages in wrongdoing for the purpose of making the declarant unavailable to testify, and renders the declarant unavailable, then: • The party cannot claim the declarant is unavailable; and • The door is open to use anything the declarant said against the party.

Proceeds of Sale of Collateral

If a security interest in collateral is perfected, and then the collateral is sold for cash proceeds (or checks or deposit account), the secured party will have a perfected security interest in the proceeds

The Confrontation Clause - Crawford Doctrine

If a statement is testimonial (i.e., made under circumstances which would lead a reasonable person to believe that the statement would be used at a later trial), then the Sixth Amendment bars admission of the statement if: • The declarant is unavailable; and • The defendant had no prior chance to cross-examine the witness

Who has priority? Unperfected security interest versus unperfected security interest

If neither interest is perfected, then the first party to have attached their interest has priority.

Equal Protection - Fundamental Rights Right to vote—Gerrymandering: Racial gerrymandering

If done with a discriminatory purpose, it's unconstitutional. - vote dilution Voting Rights Act: Requires racial gerrymandering to ensure minority success by creating majority-minority districts. • Rule: Race may be a factor in drawing district lines, but not the predominant or only factor. • Other factors include compactness and observing local, political subdivisions. • A bizarrely shaped district may be evidence of a predominant racial purpose.

1. Void Marraige - Annulment (a) prior existing marraige

If either party has a valid prior existing marriage at the time that the subsequent marriage is entered into, then the latter marriage is void. However, if one of the parties had a good-faith belief that the marriage was valid, then some states allow the marriage to become valid once the impediment is removed. Other states require that once the impediment is removed, the parties must continue to cohabit, and one party must still continue to believe in good faith that it is a valid marriage. Two scenarios (i) good-faith belief in the death of a spouse (ii) Presumption of validity

2. Voidable Marriage - Annulment (c) Intoxication

If either party was under the influence of drugs or alcohol at the time of marriage, which made that party incapable of contracting into a marriage, then that marriage may be annulled. In most jurisdictions, however, the parties must be able to demonstrate that they did not ratify the marriage by continuing to voluntarily live with each other after the ceremony.

The Due Process Clause (Fourteenth Amendment)

If evidence rules restrict a criminal defendant's ability to mount a defense, the rules might violate the Due Process Clause.

Defenses - Provocation

If misconduct is provoked by the moving party, then it is not grounds for divorce.

Character for Truthfulness or Untruthfulness Criminal Convictions (FRE 609) - Old Convictions

If more than 10 years have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if: • The probative value of the conviction, supported by specific facts, substantially outweighs its prejudicial effect; and • The proponent gives an adverse party reasonable advanced notice

Who has priority? Perfected security interest versus unperfected security interest

If only one security interest is perfected and the other is not, then the perfected interest takes over the unperfected one.

Exceptions to the Warrant Requirement Plain View

If police are legally present, they can seize any item in "plain view" (or "plain smell"), even if that item was not named in the warrant.

Venue Conflict of Law (Which state's law applies?)

If suit was brought in a district transferor proper venue and the case is transferred to another district, the law of the transferor (first) forum controls. • Apply the choice-of-law rules of the state in which the action began; "Take your law with you." If suit was brought in a district transferee proper venue and transferred to another district, the law of the transferee (second) court controls. • Do NOT get to take your law with you; no advantage to filing in the wrong court.

Transferee versus secured party with a security interest

If the collateral is transferred from the debtor to the transferee and the transferee is not a buyer, the security interest continues in the collateral unless the secured party authorized the transfer free of the security interest. In other words, the secured party still has a security interest in the collateral.

Per. Imp. Conds UCC Method of Tender/Delivery | c. Destination K (FOB Buyer's palce of business)

If the contract is a destination contract, then the seller must get the goods to the buyer's business and notify the buyer.

Per. Imp. Conds UCC Method of Tender/Delivery | b. Shipment K (FOB Seller's Place of business)

If the contract is a shipment contract, then the seller must take three actions to satisfy perfect delivery: a) Get the goods to a common carrier; b) Make arrangements for deliuvery; and c) notify the buyer

Motion for a New Trial Remittitur

If the court determines that a verdict was seriously excessive, then it may offer a remittitur to reduce the verdict and grant a new trial on the condition that the remittitur is not accepted.

Challenge to Evidence Ruling - Notifying the Court to Preserve it for Appeal Objection

If the court has admitted evidence that should have been excluded, must object and explain why the evidence should have been excluded

The Double Jeopardy Clause The Attachment and End of Jeopardy - Acquittal

If the defendant is acquitted, it is the acquitted of the case and the defendant cannot be retiredby the same jurisdiction for the same offense • The prosecution cannot appeal from an acquittal.

The Double Jeopardy Clause The Attachment and End of Jeopardy - Conviction

If the defendant is convicted and he either does not appeal or his conviction is affirmed, that is the end of jeopardy and he cannot be retried by the same jurisdiction for the same offense. • If the jury convicts the defendant, and he appeals and gets the conviction reversed, he can be retried unless the reversal was based on a finding of insufficient evidence.

Negligence: Vicarious Liability Torts Committed by Independent Contractors - Independent contractor v. employee

If the employer retains a right of control over the way that employee does the work, then the courts will treat that person as an employee.

Per. Imp. Conds UCC Method of Tender/Delivery | a. Tender at Seller's place of business

If the goods are to be tendered at the seller's place of business, then the seller just needs to give the goods to the buyer.

IWH and rent:

If the premises are not habitable, the tenant may: • refuse to pay rent; • remedy the defect and offset costs against the rent; or • defend against eviction.

Some people confuse the parol-evidence rule with the Statute of Frauds.

If the question does not have a signed writing, think SOF. If the question does have a signed writing, along with an earlier discussion of the deal, think PER.

SM: (2) Modification of Support - Cohabitation

If the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the recipient spouse's need for the support decreases as a result of the cohabitation. Support, however, typically is not automatically terminated, as the new cohabitant does not have a legal duty to support the alimony recipient. Cohabitation can also forestall the award of spousal support. The courts, however, will also consider the nature of the cohabitation, such as whether the cohabitation involves a sexual relationship. Cohabitation does not terminate alimony pendente lite, which is paid during the pendency of the divorce litigation.

Express Easements Scope "Ambiguous terms"

If the terms are ambiguous, the court considers the intent of the original parties as to the purpose of the easement.

Express Easements Scope "Trespass"

If the use exceeds the scope, the dominant tenant is trespass on the servient estate.

Who has priority? PMSI versus PMSI

If there are two or more competing PMSIs, the first to party to either file a financial statement or perfect has priority.

Taking versus regulation

If there is a taking of property, compensation is required; if there is a mere regulation on property, compensation is not required, even if the regulation reduces the value of the property.

Negligence Defenses: Comparative Fault Modified comparative negligence - Multiple Defendents

If there is more than one defendant, the plaintiff's negligence is compared with the total negligence of all defendants combined.

Foreclosure Priorities

If there is more than one interest (e.g., two or more mortgages) in the property being foreclosed, a valid foreclosure terminates any interest in the foreclosed property that is junior to the interest being foreclosed, but it has no effect on any senior interest. In determining the priority of interests (i.e., whether an interest is junior or senior to another interest), the basic "first in time, first in right" rule is applied. However, this rule is subject to various exceptions.

The Double Jeopardy Clause - Two warnings about the same offense test Separate Sovereigns Rule

If two different sovereigns have jurisdiction over the crime committed (e.g., a state and the U.S. or two different states), they can each try the defendant separately. The Double Jeopardy Clause does not bar a defendant from being tried, convicted, and punished in both jurisdictions

Default | Application of the Proceeds From a Disposition Treatment of a surplus

If, after the required payments and applications of proceeds have been made, there is a surplus, the secured party generally must pay the surplus to the debtor.

Impleader (Third-Party Practice) Subject-Matter Jurisdiction - Diversity cases

Impleader comes within the court's subject matter jurisdiction. • citizenship of the third-party defendant does NOT matter. • Amount of claim against third-party defendant does NOT matter. • Only extends to claims by the defendant against a third-party defendant

Impleader (Third-Party Practice)

Impleader is a device by which the defendant brings into the suit someone who is or may be liable to the defendant for all or part of the plaintiff's claim against him

Fault - Imprisonment

Imprisonment of one spouse for a specified period of time may be grounds for divorce.

Past Sexual Conduct - Defendant's Conduct (FRE 413-415)

In a criminal or civil case in which a defendant is accused of committing an act of sexual assault (and the like) or child molestation, evidence that the defendant committed any other sexual assault or child molestation is admissible to prove any relevant matter. • These rules allow admission of prior bad acts in order to make a propensity argument, which is contrary to the general character evidence rules.

Defamation

In a defamation action, a plaintiff must prove that the defendant: • Made a defamatory statement; • That is of or concerning the plaintiff; • The statement was published to a third party who understood its defamatory nature; and • Damages to the plaintiff's reputation results.

D. Rights and Obligations of Children 3. Emancipation

In a few situations, a child no longer lives with his parents and is self-supporting. In such a case, the child may petition the court for a decree of emancipation. This means that the child is no longer considered a minor in the eyes of the law and therefore has all the duties and obligations of adulthood. Parents no longer have a duty to support him, and in fact, some jurisdictions require the child to support the parents in later years. Married minors are also considered to be emancipated in most states.

BIC Std 5. Guardian Ad Litem

In a highly contested child-custody case, legal counsel may be appointed for the child. This attorney's duty is to advocate for the child's preferences and act on her behalf. The attorney's fees are usually paid by the parents.

Kidnapping Malicious Burning Elements - Burning CL

there had to be burning (fire) as opposed to an explosion or smoke damage. It also required damage to the structure, not just the contents inside.

Tenant's Duty to Avoid Waste - Duty to repair

In a residential lease, the LL is presumed to be responsible for repairs. The tenant must notify the landlord of any needed repairs.

The Sixth Amendment

In addition to the Fifth Amendment right to counsel for custodial interrogations, the Sixth Amendment explicitly provides a criminal defendant with "the assistance of counsel for his defense."

CS: (2) Paternity - Other Evidence

In addition to the blood test, evidence such as (i) prior statements regarding paternity by deceased family members, (ii) medical testimony on the probability or improbability of conception, (iii) the defendant's acknowledgment of paternity, and, in some states, (iv) the resemblance of the child to the defendant is admissible to prove paternity.

#CS (1) Calculating Support d. Deviations from child-support guidelines

In all jurisdictions, there is a rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct. Deviations, however, are permitted as the circumstances warrant. If the court determines that the amount set forth under the guidelines should be deviated from, it must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the application of the guidelines. If a parent is unemployed or underemployed, the court may impute an income to calculate the child-support award. Conversely, if the parent(s) earn a significant income far exceeding the needs of the child, the court may modify the award to provide solely for the child's needs, but generously define the amount. Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended.

5. Defenses voidable marrage

In annulling voidable marriages, courts recognize the equitable defenses of unclean hands, laches, and estoppel.

Personal Jurisdiction (PJ) - In Personam Jurisdiction Constitutional Aspect | assessing minimum contacts

In assessing minimum contacts, courts look to see whether the defendant has purposefully associated himself with the forum in some way. • Contacts between the forum and the plaintiff do NOT suffice. • There must be minimum contacts between the forum and the defedant. • Those contacts must be a result of the defendant's own purposeful actions.

J. Parental Consent

In certain circumstances, such as for medical procedures, parental consent must be obtained. This policy holds regardless of the parents' marital status. A doctor who performs surgery on a minor child without parental consent is liable in tort. There are some exceptions to this general rule, such as in the case of an emergency, when time is of the essence. Some states may permit an exception to the general rule of consent when the child is older or deemed mature, or when the medical concern is related to public health, such as the treatment of a venereal disease. Must consider: 1. Religious Beliefs 2. Upbringing

SM: (2) Modification of Support

In general, spousal support may be modified, even when it has been deemed permanent. The party seeking modification typically has the burden of establishing a significant and continuing change in circumstances in the needs of the dependent spouse or financial abilities of the obligor that warrant the modification. Courts consider whether the change in circumstances was expected when the original support order was made, as well as the good faith of the party seeking modification. Terminated a. Death b. Remarriage Changes c. Cohabitation d. Retirement

Timeliness of notice:

In general, the test for the timeliness of a notification of a disposition is reasonableness. The notification should be sent sufficiently far in advance of the disposition to allow the notified party to act on the notification. In a transaction other than a consumer transaction, when a secured party sends a notification of disposition after default and at least 10 days before the earliest time for disposition set forth in the notification, the timeliness of the notice is reasonable, provided that the notice is sent in a commercially reasonable manner.

Defamatory Constitutional Requirements Constitutional limitations - Private individual

In most jurisdictions, a plaintiff must show that the defendant was at least negligent as to the falsity of the statement.

#CS (3) Medical Insurance

In most jurisdictions, the cost of providing medical insurance for the child is included in the child-support award, if either of the parents has access to insurance. If there is no insurance available, then the court may include provisions for the procurement and payment of insurance after consideration of the medical needs of the child, the cost of the coverage, and the availability of a plan to meet the child's needs. Any premiums associated with the medical coverage shall be subtracted from the net income of the parent who is responsible for the payment.

a. Voluntary termination 2) Consent of the prospective adoptee

In most jurisdictions, the prospective adoptee must consent to his adoption if he is over 14 years of age; some jurisdictions lower the age to 12 years.

h. Post-separation property

In most states, property acquired by one spouse until a divorce is granted can be marital property. Some states treat property acquired by a spouse after permanently separating from the other spouse as separate property. Still other states draw the line between marital and separate property on the date that the divorce action is filed.

Real Covenants | Touch & Concern

In other words, the covenant must be in connection with the parties' status as landowners. Examples of covenants that touch and concern the land include agreements to pay homeowners' association fees or an agreement by condominium owners to abide by restrictions set forth by the governing body of the condominium complex. • The benefit or burden of the covenant must affect both parties as owners of the land. Negative Covenant & Affirmative Covenant

c. Personal-injury claim proceeds 1) Marital property

In some jurisdictions, if the cause of action accrues between the date of the marriage and the final separation, the proceeds from the settlement or award are marital property. As long as the cause of action accrued during the marriage, the proceeds are marital property—even if the claim is paid after the final separation.

V & P Time 1. Third Parties

In some situations, third parties, such as grandparents, stepparents, or gay or lesbian nonbiological co-parents, may seek parenting time. Visitation is sometimes granted to stepparents and same-sex nonbiological co-parents, but it is typically limited to those cases in which they have acted in loco parentis with the child prior to the divorce. Absent such a relationship, there are no protected rights of a stepparent or nonbiological co-parent to have ongoing contact with the child(ren) after divorce or death of the natural parent. a. "Special weight" to a fit parent's decision b. Grandparent visitation c. Unwed biological father

Personal Jurisdiction

Power of the court to decide the rights and liabilities of the power of this defendant

1. Void Marraige - Annulment (b) Incest

Incest is marriage or sexual relations between people related within the prohibited degree of kinship. All states restrict marriages by consanguinity (blood relationships), and nearly half bar marriages between first cousins. Typically, most consanguinity statutes also prohibit marriages between relatives of half blood, and many prohibit it when the relationship is by adoption.

SOF UCC Satisfied? | d. A judicial admission

Includes a statement in a pleading or during testimony, etc. This satisfies the Statute of Frauds under the UCC.

Fault - Indignity

Indignity grounds arise when one spouse exhibits negative behavior toward the other that renders that spouse's condition intolerable and life burdensome. Indignity can include: vulgarity, unmerited reproach, habitual laziness, neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, habitual humiliating treatment, repeated accusations of infidelity, sexually deviant behavior, serious temper tantrums, or violence. Although it is still available in some states, indignity is no longer recognized in the majority of states.

Subject-Matter Jurisdiction

Power of the court to decide this type of case

Habit Evidence

• Allowed to prove action in conformity with the habit • Something that is routine, regular, or automatic • Can also be the habit of an organization

Defenses - Insanity

Insanity is a valid defense when one spouse does not know the difference between right and wrong or lacks the ability to understand that an act is wrongful.

Fault - Institutionalization

Institutionalization is grounds for divorce if a spouse's insanity or serious mental condition results in her being confined to a mental institution for a specified period of time prior to the commencement of the divorce, and there is no reasonable prospect of discharge or rehabilitation.

. Intangible Collateral

Intangible collateral includes nine classes of personal property. The more frequently tested types of intangible collateral are: 1) Accounts 2) Deposit Account

"IT" Trespass to Chattels

Intentional interference with the plaintiff's right to possess personal property either by: • Dispossessing the plaintiff of the chattel; • Using or Intermeddling with the plaintiff's chattel; or • Damaging the chattel.

Senior interests:

Interests acquired before the interest that is being foreclosed. They survive the foreclosure.

V & P Time 4. Interference

Interference or refusal to comply with a visitation order may be remedied by a change in custody or by contempt proceedings.

Defamatory Constitutional Requirements Constitutional limitations - Private individual | Not a matter of public concern

It is unclear whether constitutional limitations apply; a state need not require a plaintiff to prove negligence

The security agreement must meet the following requirements

It must be in a record, such as a written or typed document, Contain a description of the collateral (such as "all of debtor's equipment"; and Be authenticated (typically signed) by the debtor.

Implied Easement by Prescription

It's like acquiring an easement by adverse possession. o Adverse possession is about possession, whereas an easement by prescription concerns title to use. o Elements are the same as adverse possession, except exclusivity.

CC. 3. Joint Custody

Joint custody generally requires that the parents are both willing and able to cooperate with respect to the well-being of the child. Usually, joint custody is not imposed over the objections of one parent, but, even when it is, the arrangement must meet the best-interests-of-the-child standard. - Neither parent has a superior right to make mj decisions - Spell out a procedure for resolving conflicts - MJ cases - Does not require 50/50 time sharing

e. Accumulated sick and vacation days

Jurisdictions are split on the issue of whether vacation and sick days are marital property. Courts have held the following: (1) accrued vacation and sick days are marital property subject to division at the time of dissolution; (2) accrued vacation and sick days are marital property but are subject to distribution when received, as opposed to the time of dissolution; and (3) accrued vacation and sick days are not marital property.

c. Personal-injury claim proceeds

Jurisdictions differ on the treatment of proceeds from personal-injury claims and worker's compensation claims. There are two basic approaches: 1. Marital property 2. Separate and marital allocation

CL Intent

Jurisdictions vary on the proof necessary to establish the requisite elements for a common-law marriage. The parties must produce evidence that they intended to enter into the marriage, and this must be evidenced by words in the present tense made for the purpose of establishing a valid legal marital relationship. In the event that the parties are unable to show evidence of their intent to marry in present-tense words, the court may look to cohabitation or reputation to determine if the couple holds or held themselves out as married. The courts, however, have consistently held that cohabitation alone does not support a common-law marriage.

3. Equitable Distribution of Property in an Annulment

Just because a marriage is terminated by annulment rather than divorce does not mean that parties to annulled marriages have no rights. The party seeking the annulment still has a right to request an equitable distribution of property and, in some cases, spousal support. That party may also seek child support, custody, attorney's fees, and other costs related to the dissolution of the marriage. Many jurisdictions have statutorily provided courts with the ability to award spousal support. In states without this statute, courts will not award spousal support. However, many of these states allow temporary spousal support during the pendency of the suit. Also, most courts will not reinstate spousal support from a previous marriage.

Defenses - Justification

Justification grounds may be established if one party left the home because of the other's misconduct. This is a defense to desertion.

Defenses "IT" | Capacity of Consent

Lack of capacity may undermine the validity of consent (e.g., youth, intoxication, incompetency).

Personal Jurisdiction (PJ) Federal Rules

Lack of personal jurisdiction must be raised at the first opportunity, or it is waived. • If the defendant chooses to file a pre-answer motion to dismiss, she must make the objection then or waive it, OR • If the defendant does not file a pre-answer motion, the objection to personal jurisdiction must be raised in the answer. **Whatever is filed first**

Servient Estate

Land burden by the easement

Negligence - Landlord and Tenant Standard of Care

Landlord must: • Maintain safe common areas; • Warn of hidden dangers (especially for premises that are leased for public use); and • Repair hazardous conditions As an occupier of land, the tenant continues to be liable for injuries arising from conditions within the tenant's control.

Larceny

Larceny requires: • Taking; • Another person's property; • Without his consent (trespassory); and • With the intent to deprive him of it permanently.

Regulation of the Content of Expression - Expressive Conduct (a.k.a. Symbolic Speech)

Laws regulating expressive conduct are upheld if: • The regulation furthers an important interest; • That interest is unrelated to the suppression of expression; and • The burden on expression is no greater than necessary. The key: If the government is trying to suppress a particular message, then the law will be struck down; if the government is trying to pursue an interest speech/point of view to the suppression of expression, then the law will be struck down.

Leases

Leases are covered under Article 9 when the transaction, although in the form of a lease, is in economic reality or substance a secured transaction. It is generally determined on a case‐ by‐case basis.

CC. 1. Legal Custody

Legal custody is the right of a parent to make major decisions, as contrasted with everyday decisions, regarding the minor child. Typically, areas of health, education, and religion are encompassed.

BIC Std 3. Third-Party Rights

Legal parents are presumptively entitled to custody of their children in cases against third parties, including grandparents or stepparents, unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child. If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms "parent by estoppel" and "de facto parent" to get around the presumption. A minority of the jurisdictions apply the best-interests-of-the-child standard in all custody cases, even those between a parent and a third party. However, such a standard may run afoul of a parent's constitutional rights As with support obligations, custody rights may also turn on paternity issues

Due-on-sale clause

Lender has the option to demand immediate full payment upon transfer. Think of this as an acceleration clause that allows the lender to speed up the payment when the property is transfer.

Merger - Lesser-included Offenses

Lesser-included offense—an offense in which each of its elements appears in another offense, but the other offense has something additional Think of each element as a different geometric figure. If the elements of Offense # 1 are a circle and a square, And the elements of Offense # 2 are circle, square, and triangle, then Offense #1 is the lesser-included offense of Offense #2; Offense #2 is the greater-included offense of Offense #1. Remember: A defendant cannot be convicted of both Offense #1 and Offense #2 If there are two separate victims, the crimes against each victim do not merge together.

SM: Types of Support - c. Limited duration

Limited-duration alimony is established for a limited period of time. Unlike rehabilitative or reimbursement alimony (discussed below), its purpose is not to facilitate an increased earning capacity of the dependent spouse or to compensate a spouse who has sacrificed. Limited-duration alimony is typically awarded when the marriage was of short duration (making permanent alimony inappropriate), but there is still an economic need for support.

Terminating The offer "All" "Triple R, Double C, O"

Look for 1/6 recurring fact patterns 1. Revokes by express communication 2. Reasonable amount of time has passed 3. rejects the offer 4. counter offer 5. Constructive revocation. 6. Offeror dies

Recognition of Common-Law Marriages

MIN/few: recg. CL marriage. almost all states recognize common-law marriages entered into in a jurisdiction that does recognize such relationships. Under conflict-of-law principles, a state need not recognize a marriage valid under the law of the place in which it was contracted if it violates a strong public policy of the state asked to recognize the marriage. Some jurisdictions recognize a common-law marriage when the parties had only a short, transitory visit to the permitting state, while other jurisdictions require that the parties be domiciled in the permitting state. Some jurisdictions consider the inquiry on an individual basis, weighing the harm to the claimant seeking recognition and the state's policy against such marriage. ** Assume the jurisdiction has abolished CL marriage unless the question states otherwise**

I. GETTING MARRIED

Marriage is a civil contract. Similar to most contracts, marriage involves parties who are legally capable of consent, the exchange of consideration in the form of mutual promises, and the imposition of rights and obligations. Conversely, unlike most contracts, a marriage contract cannot be modified or terminated without state intervention. A marriage is valid if there is a license and a solemnization of the marriage (ceremony)

B. Jurisdiction

Matrimonial courts have full equity powers in matrimonial actions, which include: i) Division of property; ii) Divorce or annulment; iii) Custody; iv) Support and alimony; v) Award of attorney's fees; vi) Enforcement of separation agreements; and vii) All other matters related to matrimonial actions.

Amendments to the Pleadings - Types of Amendments As of Right

May be amended once at any time within 21 days of service of the pleading or within 21 days of the defendant's response, if there is one

"IT" Assault - Intent

May be present in one of two ways - The defendant must intend to cause either: • An apprehension of imminent harmful or offensive contact; or • The contact itself.

Exceptions to the Best Evidence Rule Unavailable

May introduce other evidence of the contents if: • The original has been lost or destroy (unless done by the proponent in bad faith); • The original cannot be obtained by any judicial process; or • The party against whom the document is introduced had control of the original and knew that it was going to be at issue at trial.

Searches Incident to Arrest Arrest in a car

May search passanger compartment of a vehicle as long as the person/suspect still has access to the vehicle at the time • Officers cannot arrest a suspect, put him in the back of the squad car, and then go back and conduct a search of the car • Note that if it were reasonable to believe that the vehicle contains evidence of the offense of the arrest, such a search would be proper, even though the suspect would no longer pose a threat to the officers.

C. Mediation

Mediation is a frequently used, less expensive, and often more effective manner to resolve separation disputes. A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights. Discussions during the mediation process and the written agreement derived from the discussions remain confidential, unless both parties agree to their disclosure. The court may approve the agreement and make it part of the final judgment. A mediator: 1. must facilitate the participants' understanding of what mediation is. 2. should recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly 3. must structure the mediation process so that the participants make decisions based on sufficient information and knowledge.

Work product that cannot be obtained

Mental impression work product (core work product) • Reveals the attorney's trial tactics, conclusions, theories of the case, etc.

Merger - Inchoate and Completed Offenses Solicitation

Merges into the completed offense

Mistake of Fact General Intent

Mistake of fact is a defense only if the mistake is reasonable and goes to the criminal intent.

Mistake of Fact Strict Liability

Mistake of fact is never a defense to strict liability crimes • Must be a voluntary act, but the defendant's state of mind is irrelevant

Mistake of Fact Specific intent

Mistakes of fact are a defense whether the mistake is reasonable or unreasonable. The only question is whether the defendant held the mistaken belief.

Purchase-money mortgage exception

Mortgage given to a lender in exchange for a loan to buy real property The purchase money mortgage has priority over mortgages and liens created by or against the purchaser/mortgagor prior the purchaser/mortgagor's acquisition of the property.

Liability of mortgagor/borrower

Mortgagor may transfer the property by deed (sale), by will, or by intestate succession.

BIC Std 4. Child's Preference

Most courts will consider the wishes of the child if the court can determine that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, then the court evaluates the reasons behind the preference.

#CS (1) Calculating Support a. Income-shares model

Most jurisdictions have adopted an income-shares model, which operates on the theory that a child should receive the same proportion of parental income as if the parties continued to live together.

Land Sale K's Duty to Disclose Defects

Most jurisdictions impose a duty on the seller to disclose to the buyer all known, physical and material defects. • Concerned with latent or hidden defects; • Material defect must substantially affect the value of the home, health and safety of its occupants, or the desirability of the home; • General disclaimers (e.g., "as is") will not satisfy the seller's duty to disclose.

E. Modification of Child Support

Most jurisdictions permit an award of child support to be modified. Although the statutory language varies, in general, modifications are permissible when there is a substantial change in circumstances regarding the child's needs or the parents' financial situation, and that change is expected to be continuing, rather than temporary. Some jurisdictions, however, permit a modification to a support order after a certain passage of time, such as for a cost-of-living increase. Typically, a modification award is made retroactive to the date of service of the motion on the opposing party, but support obligations that have accrued prior to that date generally may not be modified. **Voluntary Reduction in Income must be considered**

2. Voidable Marriage - Annulment (e) Lack of intent

Most jurisdictions permit annulment when the parties participated in the marriage ceremony as an act of jest or hilarity and do not have the requisite intention to be bound by the act. Most courts annulling marriages in such circumstances have determined that the interest of the public would not be served by requiring the parties to remain married. This also includes cases in which the parties, in advance, agree to only some, but not all, of the conventional aspects of marriage, including sexual and emotional fidelity, economic interdependence, and commitment to the relationship. Often seen in cases with immigration issues, this type of marriage is commonly referred to as a "limited purpose" marriage.

D&S: 2. Grounds for Divorce

Most jurisdictions recognize both fault and no-fault grounds for divorce, although a substantial minority recognize no-fault grounds as the only basis for a divorce. The no-fault statutes eliminate fault and wrong as grounds for dissolution.

Solemnization

Most states do not prescribe a particular form of the marriage ceremony, but many require that any ceremony solemnizing the marriage be performed in front of at least two witnesses. Some states even allow for a proxy to stand in for one of the parties who cannot attend the ceremony if the party provides written authorization for the third person to act as a proxy. Additionally, in most jurisdictions, a judge, political official, or member of the clergy of a recognized religious organization must solemnize a marriage. The marriage license must be completed and filed with the appropriate government office.

Division of Property (2) Equitable Distribution

Most states follow a system of equitable distribution. The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. Unlike a community-property division, an equitable distribution is not necessarily an equal division of marital assets. There are, however, a few states that presume that an equitable division is an equal division, but permit deviation when necessary to achieve a more equitable result.

D&S: 1. Residency Requirement

Most states have a residency requirement that requires at least one of the parties to be a resident of the state. The required length of residency in a state before a party can file for divorce can turn on several factors, such as whether the couple was married in the state or the grounds for divorce happened in the state.

1. Void Marraige - Annulment (a) prior existing marraige (i) Good faith belief in the death of a spouse

Most states have adopted what is known as an "Enoch Arden" statute in bigamy cases. In those jurisdictions, there is a defense to bigamy if the parties had a good-faith belief that the previous spouse was dead. The courts differ in the treatment of such marriages. Some jurisdictions require a divorce proceeding from the original spouse once the existence of the spouse is determined as a prerequisite to validating the later marriage.

Negligence: Damages Collateral-Source Rule Modern trend

Most states have passed statutes that eliminate or substantially modify the collateral source rule to avoid double recovery.

2. Voidable Marriage - Annulment (d) Fraud, misrepresentation, duress, coercion, or force

Most states permit an annulment when the marriage was the result of a fraud that goes to the essence of a marriage. To annul a marriage based on fraud, it must be based on present—not future—facts. Most courts require that the parties immediately cease living together once the fraud is discovered. Concealment of defective morals, character, habits, fortune, and temper are typically insufficient grounds for an annulment. Jurisdictions have differed, however, on claims of misrepresentation when a woman has falsely claimed to be pregnant by a man, or on claims relating to a party's religious beliefs.

Division of Property (3) Marital Property Exceptions

Most states treat certain property as separate, rather than marital, property. Among the types of property treated as separate property are the following: i) Property acquired before the marriage or property acquired in exchange for property acquired before the marriage; ii) Property excluded by the parties' valid agreement entered into before, during, or after the marriage; iii) Property acquired by gift or inheritance, or property acquired in exchange for such property, except when it is between spouses; iv) Property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation; v) Property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and vi) Any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received.

Jurisdiction of the Supreme Court Appellate Jurisdiction

Mostly, the jurisdiction of the Supreme Court is appellate. • Certiorari • Limitations on the Supreme Court's appellate jurisdiction • Adequate and Independent State Grounds (AISG)

Multi-Party Litigation | Permissive Joinder of Parties Diversity cases

Must completely diversity NO party can be joined whose presence would destroy complete diversity, or AIC even if the joinder rules are otherwise satisfied.

Defenses "IT" | Privilege of Arrest - Police

Must reasonably believe that a felony has been committed and that the person arrested committed it An officer who makes a mistake as to whether a felony has been committed is subject to tort liability.

Subject-Matter Jurisdiction: Removal Jurisdiction Removal of Diversity Cases - One-year limit on removal

Must remove within one year of the commencement of the action in state court, unless the plaintiff acted in bad faith to make the case nonremovable.

Defenses "IT" | Privilege of Arrest - Private citizen Is it a defense to make a mistake as to whethter the Felony was actually committed?

NO - gotta be right

Invasion of Privacy Defenses - Truth

NOT a defense to privacy torts, as opposed to defamation

Class Actions - Diversity Jurisdiction

Named representatives must be completely diverse from the defendants AND at least one plaintiff must have a claim worth over $75,000.

Regulation of Unprotected and Less Protected Expression Obscenity - Land use restrictions

Narrowly drawn ordinances can regulate the where of adult theaters, but cannot ban them entirely.

BIC Std 7. Domestic Violence

Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody. Some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue

Need three things to sue: 1. Injury 2. Causation 3. Redressability

Deed Recording | What is the purpose of recording?

Notice. Tell the world you own the property.

Mandatory Disclosures Scope of Discovery Exceptions to Discovery | Work-product rule Special Cases

Notwithstanding the above, you can: • always get a copy of own statements whether you are a party or a mere witness. • Never get a copy of mental statements whether you are a party or a mere witness.

Negligence - Standard of Care | Mental and emotional characteristics

Objective standard—defendant is presumed to have average mental abilities and knowledge

Negligence - Standard of Care | Intoxication

Objective standard—held to the same standard as sober people unless the intoxication was involuntary - then modified

Use variance:

Obtain the right to use property in a manner not permitted by zoning

Seizure

Occurs when an officer, by means of physical contact or show of authority intentionally terminates or restrains the person's freedom of movement • Physical force—grabbing suspect by the arm, blocking ability to move, shooting a suspect • Show of authority—showing a badge and saying, "Stop!" • Test: Whether a reasonable person would feel free to disregard the officer

What is a "Search"?

Occurs when government conduct violates a reasonable expectation of privacy 1. Government Conduct 2. Reasonable Expectation of Privacy

The Double Jeopardy Clause - Two warnings about the same offense test

Offenses with different Sovereign are separate offenses for double jeopardy purposes. Separate Sovereigns Rule vs. Charged v. punished

The Exclusionary Rule 5½ Exceptions - Knock and announce

Officers executing an arrest warrant at a residence are required to knock and announce they are police. • If they fail to do so, and discover evidence, that evidence does not have to be suppressed - need to have entitlement to enter.

Negating Mens Rea - Mistake

Often, a defendant will claim that some mistake—regarding either facts in the world or the state of the law—negates his mens rea and thus he cannot be convicted of a crime for which there are both actus reus and mens rea elements.

H. Modification

Once a custody order has been entered, absent relocation, a state retains subject-matter jurisdiction to modify the order while the child remains a minor. Most jurisdictions apply a change-in-circumstances standard, requiring some substantial and unforeseen change since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose behind requiring time barriers or a substantial change in circumstances is to promote stability in the child's life. The violation of a child visitation order does not automatically change who is designated as the custodial parent; it is a factor to consider in modification of an order. The failure to pay child support is not a basis on which to withhold visitation or modify an existing child-custody order. If the custodial parent is proposing to relocate with the minor child, and the relocation will significantly impair the noncustodial parent's ability to see the child under the court-ordered visitation schedule, then it will almost always constitute a substantial change in circumstances warranting a modification. Note that prior to discussing the modification, if any, the court must provide the custodial parent with permission to relocate after applying the below factors.

Adoption 2. Legal Effects of Adoption

Once an adoption takes place, the adoptive parents have all of the rights and responsibilities that the biological parents would have had (e.g., support, custody, visitation, and inheritance), and the adopted child has all of the rights and responsibilities that a biological child would have had (e.g., intestate rights in the adoptive parents' estate). As the adoptive parents stand in the shoes of the adoptee's biological parents, the vast majority of jurisdictions will not permit visitation between the adoptee and her biological parents. A few states do authorize visitation between an adoptee and a nonparent, typically a stepparent, but only when there is a substantial relationship between the child and nonparent, and the visitation is in the child's best interests. Generally, an adoption may not be dissolved, although some states have permitted dissolution in limited circumstances, such as the discovery of an undisclosed mental or physical illness. In evaluating dissolution claims, courts typically consider the length of the relationship, the child's needs, and the parent's motives.

Defense of Formation | 3. Mistake - Unilateral Mistake

One party Mistake Allows the adversely affected party to rescind if: a) She can prove all of the elements of mutual mistake; and b) Either: i) make the contract unconscionable; or ii) The other side knew of, had reason to know of, or iii) caused the mistake.

Performance Implied Conds | The Constructive Condition of Exchange (CCE)

One party's performance is conditioned on the other side's performance.

Substantial

One that would be offensive, inconvenient, or annoying to an average person in the community.

THE EXECUTIVE POWER AND INTERBRANCH RELATIONS The Powers of the President—Domestic Few powers that are exclusively executive and, therefore, not subject to statutory control - Appointment and Removal of Executive Officers

Only the President (or his appointees) can hire or fire executive officers. Some senior officers (e.g., cabinet officers, ambassadors, federal judges) require the advice and consent of the Senate. The Senate has a power of rejection. • Just as Congress cannot hire or fire an executive officer, it cannot give executive power to any officer it can hire or fire (investigator)

Conspiracy - Model Penal Code (MPC)

Only the defendant must actually agree to commit the unlawful act. The other people with whom the defendant agrees can be undercover agents, for example.

Regulation of the Time, Place, or Manner of Expression (Content-neutral) - 3 Requirements

Only time, place, and manner may be regulated in a public forum. 1) Content-Neutral: Must be content neutral on its face and as applied. Also, must not allow executive discretion. 2) Alternative channels of communication must be left open: Time, place, or manner law must be a guideline for speech, not a flat prohibition of speech. 3) Must narrowly serve a significant state interest: Under this test, most content-neutral time, place, or manner regulations are upheld. • Does not require a compelling interest

Equitable Mortgages - Deed of Trust

Operates like a mortgage but uses a trustee to hold title for the benefit of the lender (i.e., the beneficiary of the trust receiving the payments)

Termination Without Trial | Voluntary Dismissal

Ordinarily w/o prejudice • Without prejudice: Party whose claim is dismissed can bring that claim again in a new lawsuit. Plaintiff has a right to a voluntary dismissal once at any time prior to the defendant serving an answer or a motion for summary judgment. • The defendant's motion to dismiss (e.g., for lack of jurisdiction or improper venue) before filing an answer does NOT cut off the right to a voluntary dismissal. After a defendant has filed an answer or motion for summary judgment, or if the plaintiff has already voluntarily dismissed once, plaintiff must seek leave of court for dismissal without prejudice. • Plaintiff will have to pay the costs if she ends up later filing the same action against the same defendant.

#CS (1) Calculating Support b. Percentage-of-income model

Other jurisdictions have adopted a percentage-of-income model, which determines the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent's net income, determined by the number of children supported. Certain expenditures, such as taxes or necessary medical expenditures, may be excluded when calculating net income.

c. Personal-injury claim proceeds 2) Separate and marital allocation

Other jurisdictions view the nature of the award to determine whether it is separate or marital property and allocate the award between nonmarital and marital property. Compensatory damages for pain, suffering, disability, and loss are considered the separate property of the injured spouse. Consortium losses are considered separate property of the non-injured spouse. Awards for lost wages, loss of earning capacity, and medical expenses are typically split. The court calculates the portion of the award attributable from the time of the accident until the termination of the marriage, and it treats that portion as marital property. Any part of the award attributable to loss of wages or medical expenses after the termination of the marriage is separate property.

Regulation of the Content of Expression - Overbreadth

Overbroad laws are ones that go too far in regulating speech. These laws burden substantially more speech than is necessary to protect a compelling interest and thus violate the First Amendment.

Land Sale K's Who's Who? - Seller

Owner looking to unload property

Negligence: Breach of Duty — Custom Physicians Informed consent

Patients must give informed consent: Doctors must explain standard of medical procedures.

Substantive Due Process Fundamental Rights Privacy - Sexual intimacy

Perhaps not technically a fundamental right—the Supreme Court found that the government has no legitimate interest in regulating non-commercial sexual intimacy between consenting adults, including same-sex couples

SM: Types of Support - b. Permanent

Permanent alimony is an award for the remainder of the dependent spouse's life, unless certain circumstances occur. The purpose behind permanent alimony is to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during the marriage. It is primarily used in cases in which one spouse remained out of the workforce for homemaking or child-rearing purposes. Permanent alimony is typically awarded only when the marriage was one of long duration. Although jurisdictions differ on the definition of "long-term," it typically refers to a marriage of 15 years or more.

Defenses "IT" | Privilege of Arrest - Private citizen

Permitted to use reasonable force to make an arrest in the case of a FELONY IF: • The felony has actually been committed; and • The arresting party has reasonable grounds to suspect that the person being arrested has committed the felony.

Procedural Due Process—the Right to Notice and a Hearing Liberty:

Physical confinement, probation and parole, physical injury (such as a spanking in school), any restriction on legal rights (including being punished for free speech). Injury to reputation is not a loss of liberty.

CC. 2. Physical Custody

Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child. As with legal custody, physical custody may be shared by both parents under a joint custody arrangement.

Who bears the risk of loss if there is damage to or destruction of the property?- MIN

Places the risk of loss on the seller until the closing and delivery of deed.

Amount in Controversy (AIC) - Aggregation One plaintiff v. one defendant

Plaintiff can aggregate all her claims, regardless of whether the claims are related. You can add up all the claims

Subject-Matter Jurisdiction: Removal Jurisdiction Improper Removal

Plaintiff can file in federal court a petition for remand, and it is on that petition that the federal court will hold a hearing. • If removal is proper, remand is denied, and case stays in federal court. • If removal is improper, remand is granted, and case goes back to state court. • Key point: The decision is made by the federal court. Removal is automatic, and then the decision about whether it was proper is done on a petition for remand by the federal court.

Who has priority? PMSI (Purchase Money Security Interest) Rules

Preference is generally given to a PMSI over a non‐PMSI security interest. A PMSI in goods other than inventory or livestock prevails over all other security interests in the collateral, even if the other security interests perfected earlier, so long as the PMSI is perfected before or within 20 days after the debtor receives possession of the collateral.

Validity of Marital Agreements 1. Full Disclosure

Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties. Disclosure is an important consideration to the court, as it demonstrates that each party exercised a meaningful choice when they agreed to the terms of the contract. Absent full disclosure, a court will generally refuse to enforce the agreement.

a. Voluntary termination 3) Withdrawal of consent

Prior to a final decree of adoption, the parents' consent to adoption may be withdrawn with court approval. After the final decree is entered, however, no withdrawal of consent is allowed.

Character Evidence - Impeachment

Propensity argument can be made to impeach (e.g., the witness is a liar)

Cooperatives

Property is owned by a corporation (made up of residents/shareholders) that leases individual units to shareholders (residents).

Prosecutors | Prosecutorial Misconduct

Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a mistrail or reversal of a conviction - was it harmful applies.

Prosecutors | Four Prosecutorial Duties Brady doctrine

Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1) Evidence that tends to show that the defendant is not guilty of the crimes charged 2) Evidence that would enable the defense to impeach the credibility of prosecution witnesses 3) Material Evidence

Free Exercise of Religion - Religious Belief

Protected absolutely (entitled to hold any belief or none at all)

Free Exercise of Religion - Religious Conduct

Protected fully from laws • Laws regulating religious conduct because of its religious are unconstitutional (i.e., laws aimed at religion). • If the law was enacted or enforced with hostility to religion, it will be struck down (even if a facially neutral law).

Regulation of Unprotected and Less Protected Expression Incitement

Speech is not protected if it is an incitement to immediate violence.

Modification 1. Relocation

Provided that a legitimate purpose for the move can be ascertained, the trend of the courts is to permit the custodial parent and child to relocate. An application to relocate, however, should be made in advance of the relocation, and it must be based on anticipated present facts, not speculative ones. Applications made after the relocation has taken place are often highly criticized by the court. Among the factors considered by the various jurisdictions are the following: i) The nature, quality, and involvement with the child of the parent who is not seeking relocation; ii) The age and needs of the child and the impact that the proposed relocation will have on that development, including any special needs of the child; iii) The ability to preserve the relationship with the nonrelocating parent and the child through visitation arrangements; iv) The child's preference, if the child is of sufficient maturity; v) Whether the parent seeking relocation has any history of promoting or preventing parenting time with the nonrelocating parent; vi) Whether the relocation will enhance the quality of life of the child and the parent seeking relocation; vii) The reasons each parent has in requesting or opposing the relocation; and viii) Any other factors that affect the best interests of the child. It is important to note that the applicable standards may be even more restrictive when the parents share joint custody of the minor child. In those jurisdictions, the standard is often more protective of the parent who is not seeking the relocation. Mediation can often be useful in assisting with resolving child-custody issues.

Deed Recording | What does it mean to record?

Publicly register your deed.

Two Kinds of Mortgages

Purchase money mortgage Future advance mortgage:

Effects of Foreclosure - Purchaser

Purchaser of property at a foreclosure sale takes the property FREE AND CLEAR of any junior mortgage and subject to any senior mortgage; BUT: The purchase may be subject to the mortgagor's statutory right of redemption, if one exists

In judging whether title is unmarketable, the standard is that of a ______________________________ buyer.

REASONABLE

If the seller cannot deliver marketable title, the buyer's remedy is ______________________________ of the contract.

RESCISSION

Equal Protection (Race, Ethnicity, and National Origin) Suspect Classifications (Trigger Strict Scrutiny and Arise under Equal Protection) — Race, Ethnicity, or National Origin

Race, Ethnicity, or National Origin—laws that disadvantage minorities will be struck down. • Discriminatory purpose is required: A law is a racial classification only if the plaintiffs show it has a discriminate purpose (not enough to show a disproportionate impact).

Deed in lieu of foreclosure:

Rather than face foreclosure, the mortgagor can convey the property to the lender in exchange for releasing her from any outstanding debt.

Equal Protection (Race, Ethnicity, and National Origin) Standards of Review—Same for Due Process and Equal Protection Rational basis

Rational basis test is generally easily passed. However, recent Supreme Court cases have made exceptions in the field of sexual orientation. • Lawrence v. Texas - criminalization of homosexual intercourse did not pass rational basis test. • United State v. Windsor - Court applied rational basis "with teeth" and struck down the federal Defense of Marriage Act, because it was not a rational plan of the federal government. • Obergefell v. Hodges - Court held that marriage is a fundamental right and required states to recognize same-sex marriages. Laws against sexual orientation might be struck down as irrational because they are not supported by reasons other than mere prejudice.

REAL COVENANTS

Real covenants are promises that landowners make regarding the use of their land. • When an agreement binds a successor it "runs with the land." · The benefit = enforce the covenant. · The burden = bound by it

Negligence - Possessors of Land Standard of Care Modern (California) way

Reasonable standard of care under the circumstances, with the status of the entrant as one of the relevant circumstances

Negligence - Standard of Care

Reasonably prudent person under the circumstances—generally an objective standard

Hearsay Exceptions - Declarant's Availability Immaterial Past Recollection Recorded

Recall that when a witness cannot remember something while testifying, you can refresh the witness's recollection. This can be done by showing them a document or item (or by many other methods). • The witness may read it to the jury, but it is not provided to the jury (not introduced into evidence). • The adversary may introduce it to the jury.

Defenses - Recrimination and unclean hands

Recrimination occurs when both spouses have committed a marital wrongdoing of like conduct. In other words, because both parties were guilty of the same offense (e.g., adultery) that would justify a divorce, a court could not grant the request. A similar defense is "unclean hands," when the plaintiff's own behavior or acts are questionable. Both of these defenses are most commonly seen in desertion, adultery, or cruelty cases.

Rehabilitation of a Witness

Rehabilitation may be accomplished in one of three ways: 1) Give the witness a chance to clarify and explain; 2) Prior consistent statement—if the witness has been accused of changing his or her story, or being bribed or pressured or having an improper motive, can be rehabilitated with a statement that the witness made before the alleged motive arose; or 3) If the witness has been accused as having a bad character for truthfulness, then evidence can be introduced bolstering the witness's character for truthfulness (either reputation or opinion evidence).

SM: Types of Support - d. Rehabilitative

Rehabilitative support is for a limited period of time, such as until the spouse receives education or employment. The purpose of rehabilitative alimony is to enhance and improve the earning capacity of the economically dependent spouse.

The Exclusionary Rule 5½ Exceptions - Independent source

Relevant evidence discovered on the basis of an independent source will be admissible.

Injunction Notice Issues Ways to stop behaviors Preliminary Injunction

Relief that can be issued prior to a full hearing on the merits. Requires: • Notice to the defendant and • Hearing on whether the injunction should be granted.

Land Sale K's Buyer's Remedies on Seller's Breach

Remedies available to the buyer? • Damages: Measure is the difference between contract price and market value on the date of breach • Rescission: Returns payments to the buyer and cancel the contract • Specific performance Buyers and sellers must choose between damages and specific performance—cannot have both remedies.

Land Sale K's Remedies on Buyer's Breach

Remedies available to the seller? • Damages: Measure is the difference between the contract price and market price • Recission: Seller can sell the property to someone else • Specific Performance

Issue Preclusion (Collateral Estoppel) Summary

Remember that claim preclusion and issue preclusion are separate doctrines and must be addressed separately and in order. • Ask first whether claim preclusion bars the second suit. If so, that ends the matter. • If not, ask whether issue preclusion bars the second suit.

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases | Multiple plaintiffs, single defendant (permissive joinders and class action) - Different Basis for Jurisdiction in Class Actions

Remember that there is also statute that allows federal subject-matter jurisdiction over class actions wherein the total amount in controversy exceeds $5 million and there are at least 100 members, so long as there is minimal diversity between one plaintiff and one defendant.

Subject-Matter Jurisdiction: Removal Jurisdiction Removal of Diversity Cases

Removal based on diversity jurisdiction is proper only if: 1. There is complete diversity; 2. The amount in controversy exceeds $75,000; and 3. The action is brought in a state of which no defendant is a citizen. • One-year limit on removal

Mens Rea—The Model Penal Code States of Mind Knowingly or willfully

Requires that the defendant be aware that his conduct is of the nature required to commit the crime and that the result is practically certain to occur based on his conduct

Mens Rea—The Model Penal Code States of Mind Recklessly

Requires the defendant to act with a conscious disregard of a substantial and unjustifiable risk that constitutes a gross deviation from the standard of conduct of a law-abiding person

Waiver of Service

Rule 4: Defendants have a duty to avoid unnecessary expenses of serving the summons by waiving service. Plaintiff can notify defendant that an action has been commenced and request that defendant waive service of the summons. • Plaintiff can do this by first-class mail. • Defendant has 30 days to respond, or 60 days if the defendant is outside the U.S.

Conclusive (or irrebuttable) presumption

Rules of law that happen to use the language of presumption

Land Use - Objective

Segregate incompatible uses from being developed in the same area (e.g., residential v. commercial and industrial) o Cumulative zoning o Mutually exclusive zoning (MIN)

The Apprendi Doctrine (Sixth Amendment) - Exception

Sentence enhancement based on prior criminal convictions need not be found by a jury.

2. Separation Agreement

Separation agreements are made between spouses who are planning for divorce. These agreements can define property division, spousal support, child support, custody, and visitation. The court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud. Provisions related to child support and custody, on the other hand, are modifiable by the court if the initial terms are not in the best interests of the child. These agreements are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure. When no merger occurs, enforcement is based on contract law rather than judgment enforcement.

Special Rules for Service of Process - Adjudicated incompetent

Service must be made on the incompetent AND her guardian

Special Rules for Service of Process - Partnership

Service on a general partner, an attorney in fact, or an authorized agent

Special Rules for Service of Process - Corporation

Service on an officer, director, managing agent, or on an agent appointed for receiving service of process (corporations doing business in the state must have an agent)

Tricks d. Promising not to sue

Settling a legal claim can be sufficient consideration, but only if: a) The plaintiff has a good faith belief in the validity of the claim; or b) There is reason to doubt the validity of the claim due to uncertain law.

Equal Protection - Fundamental Rights

Some fundamental rights almost always come up under equal protection. 1. Right to travel 2. Right to vote—one person, one vote 3. Gerrymandering

b. Involuntary termination 2) Adoption

Some jurisdictions also apply the traditional law of adoption, which permits an adoption upon the finding that a parent has abandoned the parent-child relationship. Jurisdictions vary on the use of a subjective versus objective test. When an objective standard is applied, the key is whether the parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship (e.g., visitation and support). When a subjective standard is applied, the key is whether the parent subjectively intended to abandon the parent-child relationship; objective evidence of a parental loss of interest in the relationship is insufficient.

a. Voluntary termination 1) Consent of unwed fathers a) Consent by failure to register

Some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father's failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. Termination in this fashion typically applies only to cases in which the father and child never developed a relationship. A situation in which the child is a newborn gives the unwed father a constitutional right to have an opportunity to develop a quality relationship with the child.

Mutually exclusive zoning:

Some jurisdictions have developed an approach where only one type of use is permitted by zone.

Mistake of Fact MIN

Some jurisdictions require the defendant to introduce evidence of insanity, and then the burden of persuasion shifts to the prosecution to prove sanity beyond a reasonable doubt.

3) Premarital medical testing

Some states also require a form of premarital medical testing. The requirements range from filing a health certificate or certifying the absence of a venereal disease to the testing of blood for certain diseases, including measles, tuberculosis, and sickle cell anemia. While a state can mandate the testing, it cannot condition the issuance of the license on the results of the test

Modification 2. Cohabitation

Some states permit a hearing to consider a change in custody when the custodial parent is living with a nonmarital partner. However, a change in custody is generally not granted unless there is a showing that the cohabitation is having an adverse effect on the child.

Remedies | 10. UCC Specific Performance/Injunction

Specific performance is available only for unique goods like art or custom-made items.

Fault - Habitual drunkenness

Some states permit habitual drunkenness as a ground for divorce if it is the frequent habit of getting drunk that causes impairment in the marital relationship. There is no requirement that the defendant be an alcoholic or that she be constantly under the influence of alcohol, but more than an occasional level of intoxication is required. A possible defense to the grounds of habitual drunkenness may be assumption of the risk.

Negligence - Trespassers Standard of Care

Someone on the land without consent or privlege. Traditional Approach - refrain from willful, wantingly, intentional, or reckless misconduct • Use of a spring gun or trap will result in liability • Undiscovered trespassers—no duty owed • Discovered or anticipated trespassers—must warn or protect them from hidden dangers • "Attractive nuisance" doctrine • "Flagrant trespassers"—in some jurisdictions, owed an even lesser duty of care - bulgary

Negligence - Invitees Standard of Care

Someone who comes onto the land for a material or economic purpose • Public invitee—the land is held open to the public • Business visitor—for a purpose connected to business dealings with the possessor Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.

UPA 2. Gestational (Surrogacy) Agreement

Sometimes used interchangeably with the term "surrogacy," a gestational agreement is one in which a woman, known as the gestational mother or surrogate, agrees to carry a pregnancy, either through artificial insemination or by surgical implantation of a fertilized embryo, as a substitute for intended parents who cannot conceive. The intended parents are the individual or individuals who provide the egg or sperm of one or both of them used to implant into the surrogate. The intended parents agree to be the parents of the resulting child, with all the rights and obligations of parenthood. This agreement involves the gestational mother, and her husband if she is married, giving up all parental rights and obligations to the child being conceived. All parties involved must petition the court for approval of the agreement. The court must have jurisdiction, which continues until the resulting child is six months old, and the appropriate government agency must perform a home study of the intended parents to determine their fitness. All parties must have entered the agreement voluntarily and made provisions for the proper medical care associated with the surrogate agreement. The agreement may not limit the right of the gestational mother to make healthcare decisions concerning herself or the embryo she is carrying. Consideration to the gestational mother, if any has been promised, must be reasonable. The agreement may be terminated for cause by any of the parties, including the court, prior to the gestational mother becoming pregnant. An agreement that is not approved by the court is not enforceable. Once the court approves the agreement, a child born to the surrogate mother within 300 days after the assisted reproduction is presumed to be the product of the assisted reproduction. A subsequent marriage of the gestational mother has no effect on the validity of the agreement. The intended parents must file a notice of the child's birth for the court to declare them to be the legal parents. It is important to note that in many of the states that have adopted legislation regarding assisted reproduction, gestational agreements are not given effect.

A. Spousal Maintenance

Spousal support (also called maintenance or alimony) is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment. Alimony payments can be made for a definite or indefinite period of time. Unlike property settlements, alimony obligations cannot be discharged in bankruptcy. Factors are: a. Financial resources b. Standard of living c. Time d. Length of the marriage e. Contributions to the marriage f. Age and health g. Martial misconduct

Consequences of Fifth Amendment Violations

Statements obtained involuntarily Statements obtained in violation of Miranda

Equal Protection - Suspect Classifications Continued Citizenship status exception - State and local participation in government functions

States and localities may require U.S. citizenship for participation in government functions, including voting, serving on a jury, and working in any kind of government law enforcement position (including probation and parole officers), or as a public school teacher.

Installment Land Contract Modern approaches:

States are trying to assist defaulting buyers: Some treat installment contracts as a mortage, requiring the seller to foreclose; Some give the buyer the equitable right of redemption to stop a foreclosure sale; Some allow the seller to retain ownership, but require some restitution for what's been paid.

State Regulation and Taxation of Commerce Privileges and Immunities of State Citizenship under Article IV (Comity Clause) - Non-serious discrimination

States can discriminate with regard to non-serious discrimination, such as hunting licenses or state park access.

Relations Among States | Full Faith and Credit Clause

States do not have to follow other states' laws, but they do have to give full faith and credit to judgments rendered by other states' courts, so long as the rendering court had jurisdiction to render a final judgment on the merits.

Unlike quiet enjoyment and constructive eviction, IWH does not require the tenant to?

Stay on the premises

Subject-Matter Jurisdiction: Supplemental Jurisdiction What to Remember | Supplemental Jurisdiction

Supplemental jurisdiction works for federal question cases across the board, as long as the additional claims are related. Supplemental jurisdiction in diversity cases does not EVER allow you to join a non-diverse defendant or non-diverse plaintiff.

Miscellaneous SOF Probs | Modification

Suppose you have a deal that is in SOF world, and the requirements are met. Now the parties want to modify that deal. Must the modification also satisfy the Statute of Frauds requirements? Must still be on SOF. Ask whether the deal, with the alleged modification, would be in Statute of Frauds world. • If so, the Statute of Frauds requirements must be met for the modification; • If not, there is no Statute of Frauds requirement, even though the initial deal was in Statute of Frauds world.

The nonconforming owner transfers the property to a new owner?

Sure

First in time rule

Surviving debts are satisfied chronologically - Baseline rule 1. Classify the interest as Senior or Junir to the interest that's being foreclosed 2. Determine whether they survive

Termination Without Trial | Summary Judgment Materials in the record must generally be

Sworn statements to be considered in deciding a motion for summary judgment. = admissible• Pleadings are generally NOT sworn statements, but if verified, or taken under oath, they become an affidavit as well as a pleading. • Mere assertion or denial of a fact in a pleading does NOT create a genuine dispute.

Equitable Servitudes Fixtures

Tangible personal property that is attached to real property in a manner that is treated as part of the real property (e.g., a wall or a bridge; the materials used to make a wall or a bridge)

What are the three big powers of Congress?

Taxing, spending, and commerce.

LL & Tenant | tenancies is a writing required to create the tenancy?

Tenancy for a term of more than one year

Exceptions to the Warrant Requirement Stop and Frisk

Terry stops merely require reasonable suspicion; can conduct a limited search for weapons (i.e., a frisk)

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue - Causation

Test: Defendant's conduct has caused or will cause the injury.

Requirements of a Complaint Notice Pleading

The Federal Rules generally require only notice pleading: • A pleading need not detail the facts of the plaintiff's case or spell out the legal theory • A pleading need not detail the facts of the plaintiff's case or spell out the legal theory • Rule to remember: All that is required is a fair notice and a merit statement of the claim showing that the pleader is entitled to relief.

Mens Rea—The Model Penal Code States of Mind Negligently

The defendant was not aware of a substantial and unjustifiable risk and acts in a way that grossly deviates from the standard of care of a reasonable person in the same situation

D. Parental Kidnapping Prevention Act (PKPA)

The PKPA, despite its name, applies not only to parental kidnapping cases, but also to civil interstate custody disputes, including visitation rights. Under the Supremacy Clause of the U.S. Constitution, the PKPA takes precedence over any conflicting state law. The PKPA discourages forum shopping between states and allocates the powers and duties between states when a child-custody dispute arises.If a jurisdiction fails to follow the PKPA's rules regarding jurisdiction, which are substantially similar to the UCCJEA rules the order of the noncompliant jurisdiction is not entitled to full faith and credit. The International Parental Kidnapping Crime Act (IPKCA) prohibits a parent from taking a child outside the United States and obstructing the other parent's physical custody of the child. The Hague Convention requires the return of a child wrongfully taken or retained in a foreign country, and it allows the custodial parent to file suit. The exception to this is if bringing the child back into the country would expose the child to grave physical or psychological harm.

UCCJEA 7. Enforcement of Another State's Orders b. Expedited enforcement of a child-custody determination

The UCCJEA uses a process similar to habeas corpus. After a petition is filed, the respondent must appear in person at a hearing held on the first judicial day after service of the order or, if that date is impossible, on the first judicial day possible. The petitioner will be awarded immediate physical possession of the child unless: i) The custody or visitation order was not registered; and a) The issuing court did not have jurisdiction; b) The order had been stayed or vacated; or c) The respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought; or ii) The order was registered and confirmed, but the order was stayed, vacated, or modified.

UPA 1. Assisted Reproduction

The UPA defines "assisted reproduction" as implanting an embryo or fertilizing a woman's egg with a man's sperm without sexual intercourse. UPA § 102. This may include in vitro fertilization, when fertilization occurs outside the woman's body, and the fertilized egg is then implanted into the woman's uterus. The donor is the man or woman who produces the sperm or egg used in assisted reproduction, but who is not considered the parent of the prospective child. Maternity is determined by the woman who gives birth to the child, unless a gestational agreement states otherwise. UPA § 201. Likewise, the husband of the woman who is determined to be the mother of the child is the child's father, unless the husband pursues an action to declare that he did not consent to the assisted reproduction. This action must commence within two years after the husband learns of the birth of the child. UPA § 705. If either the egg donor or sperm donor dies before implantation of the embryo, or before conception, that donor is not a parent of the resulting child, unless a writing by the deceased party states otherwise.

Equitable Servitudes Governance "Powers"

The board has general powers to manage the common property and administer the residents. For example: • Assessments/fees; • Manage and maintain the common property (e.g., clubhouse, gym); • Enforce rules; • Create new rules.

Who bears the risk of loss if there is damage to or destruction of the property? - MJ

The buyer holds equitable title during the period between the execution of the contract and the closing and delivery of the deed. · Buyer is responsible for any damage to the property that happens during that period. · As holder of legal title, the seller has a right to possess the property.

What is a requirements K? "All"

The buyer is offering to buy 100% of whatever amount is needed from this individual seller

Performance Implied Conds UCC | 1. Revocation of Acceptance

The buyer may revoke an acceptance of the goods if the goods seem OK when delivered but a defect is discovered within a reasonable time.

UCCJEA 7. Enforcement of Another State's Orders c. Warrant for child custody

The court may issue a warrant, upon a petitioner's request, for the petitioner to take physical possession of a child if it finds that the child is likely to suffer serious physical injury or be removed from the state.

Erie Doctrine | No Federal Statute or Rule on Point

The court must determine whether to follow state law (i.e., the matter is deemed "substantive") or to follow federal law (i.e., the matter is deemed "procedural").

The Cruel and Unusual Punishment Clause - Capital Punishment

The death penalty can be imposed in cases only when the victim dies. • It is constitutionally disproportionate to apply the death penalty in non-homicide cases. • The state must provide a variety of special safeguards before executing a defendant, including a bifurcated trial process, the opportunity to present mitigating evidence, and a process that sufficiently narrows the class of death-sentence eligible offenses. The states' death penalty procedures are sufficiently distinct from one another that it seems unlikely that the MBE will test on those procedures themselves.

A financing statement must contain the following information

The debtor's name; The name of the secured party or a representative of the secured party; and The collateral covered by the financing statement.

What is not hearsay - Certain Prior Statements of Testifying Witnesses

The declarant must testify as a witness and be subject to cross-examination for these exclusions to apply to their earlier statements 1. Prior inconsistent Statements 2. Prior consistent Statements 3. Prior Statements of Identification

Common-Law Murder Four Kinds of Malice - abandon or depraved heart

The defendant acted with a cavalier disregard for human life and a death resulted. • Defendant must realize that his conduct is really risky but need not have any intent regarding the outcome of his actions. • Majority and MPC—defendant must actually realize that there is a danger • Minority—a reasonable person would have recognized the danger

Common-Law Murder Four Kinds of Malice - Intent to kill

The defendant acted with the desire that the victim end up dead. • Intent need not be premeditated; it can be formed in the moment before the killing

The Confrontation Clause - Defendant's right to present witnesses

The defendant has the right to testify on his own behalf. He also has the right to compulsory process to obtain witnesses in his defense.

Common-Law Murder Four Kinds of Malice - Intent to inflict serious bodily harm

The defendant intended to hurt the victim badly, and the victim died.

"IT" IIED - Intent

The defendant must: · Intend to cause severe emotional distress; or · Act with recklessness as to the risk of causing severe emotional distress.

Difference between horizontal and vertical privity

The difference between horizontal and vertical privity can be a confusing one. Horizontal privity is between the parties that made the covenant. Vertical privity is between the people who made the covenants and the people to whom they are transferring the property.

Issue Preclusion (Collateral Estoppel) Three Requirements

The doctrine of issue preclusion (collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action (i.e., offensive collateral estoppel). Other elements necessary for issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.

Endorsement Test

The endorsement test that the Court "abandoned" in Kennedy was whether a reasonable observer would consider the government's challenged action as an endorsement of religion. But this did not change the Court's stance on coercive endorsement of religion as discussed here—such coercive endorsement remains prohibited. • The Establishment Clause prohibits government endorsement of religion in a context that might prove coercive on an individual's conscience.

Equitable Servitudes Governance "Declaration"

The governing documents outline the controlling covenants and restrictions, as well as the particulars about the association or board. **Rules laid out in a declaration are valid so long as they are not illegal, against public policy, or unconstitutional.**

Adoption 1. Termination b. Involuntary termination

The involuntary termination of parental rights typically occurs as part of an abuse, neglect, or dependency case after the state has intervened and made attempts to rectify the situation. Also, if consent is unreasonably withheld, then the court will waive such consent. Each jurisdiction provides the statutory grounds and requirements for termination of parental rights. They can include abandonment, incapacity, abuse of a sibling, termination of parental rights over a sibling, and abuse and neglect of the child over a period of time. Additionally, under the Adoption and Safe Families Act, a state can move for termination of parental rights when the child has been placed outside of the home and not with a relative for 15 of the past 22 months, provided certain reunification attempts have been made by the state. Because the termination of parental rights has constitutional implications, it is considered an extreme remedy. The standard for determining whether termination is appropriate is clear and convincing evidence.

Role of Judge and Jury Weight and Credibility

The jury decides the weight and credibility of the evidence.

Implied Warranty of Habitability ("IWH"):

The landlord has an obligation to maintain the property such that it is suitable for residential use. We are concerned with conditions that threaten the tenant's residential and comercial

DV: 2. Relief Granted

The major relief granted under most of the statutes is an injunctive order prohibiting the defendant's further abuse of and contact with the victim. It can, and typically does, include exclusive possession of the residence for the period of time, child-custody and parenting time, and support. In most jurisdictions, the application for a protective order is a two-step process. The applicant must obtain an ex parte order with limited injunctive relief, followed by a hearing, after notice has been given to the defendant, for a permanent order. The duration of the order depends on the jurisdictional statute and ranges for a period of one year to an indefinite length of time. The penalties for violating a protective order are criminal in nature and range from a fine to imprisonment. EXAM NOTE: In bar exam questions, a typical example of the relief obtained by a protective order is that the defendant not abuse the petitioner and have no contact with her.

a. Professional licenses or degrees

The majority of jurisdictions do not treat a professional license or degree as a distributable property interest. Most courts look at advanced degrees or licenses as an acquisition of knowledge as opposed to a property interest. A court may, however, view an advanced degree or license as increased earning capacity, which may have an effect on the determination of alimony. A court may also use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse's educational and related living expenses. This is often referred to as the "cost-value" approach.

Absolute Deed

The mortgagor (borrower) transfers the deed to the property instead of conveying a security interest in exchange for the loan. o If this is a mortgage disguised as a sale, the borrower must prove a mortgage-like agreement by clear and convincing evidence (i.e., that there was an obligation created prior to or contemporaneously with the transfer); o Parol evidence is admissible to make this showing; o Statute of Frauds does not bar oral evidence about the agreement.

CS: (2) Paternity

The obligation of child support falls on the child's parents. Questions may arise, however, as to the identity of the child's father. Once his identity is established, the child's father has rights to custody and visitation, but he is also under a duty to support the child. Paternity actions are confidential and not available to the public. This can be done through: a. Blood test (If not the father - dismissed) b. other evidence c. unconstituional time limit on paternity petition d. Martial presumption e. Estoppel

Unilateral vs. Bilateral "All"

The offeror decides which type of offer to make, and the offeree must play by those rulles. Under the modern approach, if there is an ambiguity about whether the offer is unilateral or bilateral, accpetance can be by either performance or a return promise. - Trick: What if the seller tries to accept by shipping the wrong goods? UCC treats this as acceptance + breach.

Irrevocable offers (Power Shields) "All") "DUFO"

The offeror is normally free to revoke at any time prior to acceptance. An "irrevocable offer" can arise in 4 ways: 1. Option 2. Firm offer 3. Unilateral offer 4. Detrimental Reliance

Juris (2) Collateral Attack

The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff either was not domiciled in the divorcing state at the time that the judgment was granted or left the state's domicile immediately after the entry of the divorce. If the court had both personal and subject-matter jurisdiction over the parties, and the attacking party litigated or had the opportunity to litigate, then that person will be precluded from collaterally attacking the judgment in any jurisdiction. This is often seen in cases in which the parties colluded to obtain an out-of-state divorce. Although persons other than the party may collaterally attack a divorce if standing exists (i.e., a child), they will be precluded from attacking it if the third person is in privity with any party who would have been estopped from attacking the judgment themselves.

Easement Termination - Abandonment

The owner acts in an affirmative way that shows a clear intent to relinquish the right. o Requires more than non-use or statements; o Usually need non-use plus an act demonstrating an act to abandon.

Easements Duty to Maintain Who has the duty to maintain the property subject to an easement?

The owner of the easement. • Exception: Parties can otherwise contract.

Validity of Marital Agreements 3. Voluntary

The parties must enter into the contract voluntarily (i.e., free of fraud, duress, or misrepresentation). Courts consider factors such as time-pressure, the parties' previous business experience, and the opportunity to be represented by independent counsel. A party's insistence on the agreement as a condition to marriage is not considered duress. EXAM NOTE: Be sure to discuss whether procedural fairness exists if one party was not independently represented. Address the question of voluntariness by discussing whether the individual was both informed of her right to counsel and given the opportunity to consult counsel.

Negligence: Vicarious Liability Indemnification

The party held vicariously liable may seek indemnification from the party who was directly responsible. 1. Respondeat Superior 2. Torts Committed by Independent Contractors 3. Business Partners 4. Automobile Owners 5. Parents and Children 6. "Dram Shop" Liability

Performance Conditions | 3. Waiver

The party receiving the protection of the condition may waive the condition by words or conduct. A condition will also be waived if the other party wrongfully interfers with or hinders the occurrence of the condition This will be judged by a good-faith standard.

G. Tax Consequences of Support

The payor-parent cannot deduct child-support payments from income and the recipient-parent is not required to include them as income. The custodial parent automatically gets to treat the child as a qualifying child for tax benefits unless the parties agree otherwise. The parent who pays a child's medical expenses may deduct those expenses.

Land Use - Nonconforming Uses "Post-Ordinance Nonconforming Properties" Standard

The person applying for a variance must show ALL of the following: (1) Compliance would create unnecessary hardship; (2) The hardship arises from circumstances unique to the property; (3) the owner did not create the hardship; (4) The variance is in keeping with the overall purpose of the ordinance; and (5) The variance will not cause substantial harm to the general welfare.

Personal Jurisdiction (PJ) - In Personam Jurisdiction General In Personam Jurisdiction

The plaintiff can assert any claim whatsoever, even if it is unrelated to the defendant's contacts with the forum state.

B. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation. All states except for Massachusetts have adopted the UCCJEA. Adjudication under the UCCJEA requires that the court possess subject-matter jurisdiction. Consider 1. Initial Custody Determination (Home-State Jurisdiction) 2. Significant-Connection Jurisdiction 3. Default Jurisdiction 4. Exclusive-Continuing Jurisdiction 5. When Courts Can Decline Jurisdiction 6. Temporary Emergency Jurisdiction 7. Enforcement of Another State's Orders 8. Uniform Deployed Parents Custody and Visitation Act

6. Putative Marriage Doctrine

The purpose of the doctrine is to protect a party who is unaware of an impediment to the marriage that makes it either void or voidable. Under the doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state's divorce provisions even if the marriage is later found void due to an impediment. Because a putative marriage is not technically a marriage, divorce is not needed to terminate a relationship. The doctrine, however, is normally invoked to provide equitable relief, including maintenance and property distribution.

D. Marriage Relationship

The relationship between spouses brings with it myriad rights and responsibilities, as well as constitutional privacy issues that are germane to married couples. As the marriage relationship and individual rights continue to evolve, When it comes to disputes of intact families (e.g., how money is spent, how child raised), courts treat such matters as private ones that should be resolved within the home. Unless and until the parties separate, courts will refuse to decide such disputes. **Note that spouses have an obligation to support one another. Consequently, a creditor who provides necessities to one spouse may be able to sue the other spouse for compensation.**

Real Covenant Remedy

The remedy for a breach of a real covenant is damages only

d. Goodwill

The reputation and clientele of a professional practice (such as that of a doctor or lawyer) is considered marital property in some jurisdictions.

Negligence: Vicarious Liability Joint and Several Liability

The responsible party can still be held liable for his negligence, but the employer is also liable. • Sometimes the individual employee cannot be identified; the employer would be still be liable under joint and several liability

If the restraint is invalid:

The restraint is rejected and the property can be alienated in violation of the restraint.

Effects of Foreclosure - Senior Interest

The rights of senior interests are generally not affected by the foreclosure sale.

E. Best-Interests-of-the-Child Standard

The standard for determining child custody is the best interests and welfare of the child. Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. ** Not longer a presumption for custody in favor of the mother** Many courts consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody. EXAM NOTE: For any fact pattern about a proceeding involving children, be sure to discuss the best-interests-of-the-child standard in determining custody. Discuss: 1. Race or Religion (MJ cannot use this factor) 2. Parents' Sexual Conduct (MJ cannot use this unless proven to have a neg. effect on child) 3. Third-Party Rights 4. Child's Preference 5. Guardian Ad Litem 6. Siblings 7. Domestic Violence

What if the neighbor's buildings did not contribute to cave in?

The standard to apply is stricty liability

Jurisdiction of the Supreme Court Appellate Jurisdiction | Adequate and Independent State Grounds (AISG) - Adequate

The state ground must control the decision no matter how a federal issue is decided. AISG shows up when the federal claimant (i.e., the party asserting a federal right) wins anyway under state law. Remember this key point: The U.S. Constitution is a floor, not a ceiling, for individual rights. A state court interpreting a state constitution can always give you MORE protection. A state can never give you LESS than the federal constitution requires.

Jurisdiction of the Supreme Court Appellate Jurisdiction | Adequate and Independent State Grounds (AISG) - Independent

The state law does not depend on an interpretation of federal law (e.g., no AISG if state law adopts or follows federal law).

Common Non-Hearsay Uses - Verbal Acts or Legally Operative Facts

The statement is offered to prove that the statement was made (verbal conduct)

Exceptions to the Warrant Requirement

There are seven major exceptions; think of them as seven escapes from the warrant requirement: • Exigent circumstances • Search incident to arrest • Consent • Automobiles • Plain view • Evidence obtained from administrative searches • Stop and frisk

Sentencing & Post-Trial Procedures

There are three primary constitutional provisions that regulate sentencing: • The Cruel and Unusual Punishments Clause of the Eighth Amendment • The Double Jeopardy Clause of the Fifth Amendment • The Double Jeopardy Clause of the Fifth Amendment

Products Liability - Strict Products Liability

There are three types of product defects: manufacturing defects, design defects, and failure to warn.

State Regulation and Taxation of Commerce Privileges and Immunities of State Citizenship under Article IV (Comity Clause) - Rule

There can be no legal requirement of residency for private employment. However, public employment can require residency requirements.

Excuses—The "E"

There is a contract, but something has happened to prevent one side from having to perform. 1. Impossibility and Impracticability 2. Death after a Contract 3. Frustration of Purpose 4. Performance is Excused Because the Initial Contract has been Modified or Canceled

Substantive Due Process Fundamental Rights Travel

There is a fundamental right of move and settlement. States can impose reasonable residency requirements for political participation and government benefits, before voting/welfare. • Most are 30-90 days • One year is too long for everything except in-state tuition and jurisdiction to issue a divorce.

CS: (2) Paternity - Marital Presumption

There is a marital presumption that a child born to a married woman is the child of that woman and her husband. Most states apply the presumption even when the wife is artificially inseminated, provided that the husband gave his consent to the procedure, and the procedure is performed by a physician. In some states, a wife is estopped from denying her husband's paternity of her child, but approximately half of the states permit rebuttal of the marital presumption if the husband is impotent, sterile, or lacked access to his wife. When rebuttal is permitted, some states permit a court to exclude evidence rebutting the presumption if rebuttal is contrary to the child's best interests.

1. Void Marraige - Annulment (a) prior existing marraige (ii) Presumption of Validity

There is a presumption that the latest marriage is valid. This presumption is rebuttable by cogent evidence of the existence of a prior valid marriage at the time that the latest marriage was entered into.

Mens Rea—The Common Law States of Mind Strict Liability

There is no state of mind requirement; the defendant must merely have committed the act 1) Statutory/Regulatory offenses 2) Morals offenses

Disposition Price

There is not a specific price that must be obtained by the secured party in disposing of the collateral. The mere fact that a higher price could have been obtained by disposing of the collateral in a different manner or at a different time does not establish that the disposition was not commercially reasonable. A low price may trigger scrutiny by the court of the disposition and its reasonableness.

SOF UCC Satisfied? | c. Custom-made (or specially manufactured) goods

These are exempted from the Statute of Frauds. The maker can satisfy the SOF as soon as it makes a substantial beginning toward the manufacturing of the goods.

The Taxing and Spending Power

Think of these as separate powers even though they are lumped together in one clause.

Regulation of the Time, Place, or Manner of Expression (Content-neutral) - Nonpublic forum

This includes all kinds of government property that is not a public forum (e.g., government offices, jails, power plants, military bases, etc.). Here, the government has great power. Any reasonable regulation of speech will be upheld. • prohibit speech of parties is invalid (e.g., between members of different political parties). • Office buildings of government: One should go outside to the public sidewalk surrounding the building since that is a public forum.

Division of Property (4) Treatment of Specific Types of Marital Property

This includes: a. professional licenses/degrees b. Retirement or pension benefits c. Personal-injury claim proceeds d. Good will e. Accumulate sick/vacation days f. future interest g. SSN h. Post=Separation Property i. stock options

Lien State vs. Title States

This is an ideal exam question. Encompasses two areas of study: Concurrent ownership and security devices (mortgages).

Real Covenants | Horizontal Privity

This is the element that is least likely to be satisfied. This element requires that the parties who made up the covenant must have shared some ownership or contractual relationship in the servient land. In other words, the original contracting parties must have shared some level of ownership or control in the land. This could be because the servient land was sold from one party to the other or because one party rented out the servient land to the other party, etc. However, if the two parties who agreed to the covenant were merely neighbors and one of the parties had no ownership interest in the servient land, then the covenant will not run with the land. o Helpful Hint: Look for a transfer of property between the original parties that contains a covenant in it. (Key for horizontal privity: Look for the original parties to the agreement.)

Defense of Formation | 7. Unconscionability

This is the ultimate contract defense. Everything seems fine, but a court simply looks at the deal and says, "No, this shocks my conscience. It's unconscionable." o Two varieties of unconscionability: 1) Procedual unconscionability—a defect in the bargaining process itself, usually: • A hidden term (surprise); or • An absence of meaningful choice (no other contracting option). 2) Substantive unconscionability—a rip-off in some term of the contract o Some jurisdictions require both varieties to be present before a deal is stuck down; others may act if only one variety is present. Example: When you started law sch

Validity of Marital Agreements 2. Fair and Reasonable

To determine if a premarital contract's terms are reasonable, the courts consider the parties' wealth, age, and health. Courts will look at both whether the agreement is fair both procedurally and substantively. An agreement obtained by fraud, duress, or undue influence may be set aside as procedurally unfair. When a mediator participates in the creation of a settlement agreement, misconduct by the mediator (e.g., bias toward one spouse) can give rise to grounds for setting aside the agreement. If a confidential relationship between the spouses exists, then the burden of proving the fairness of the agreement or the absence of undue influence may be placed on the dominant spouse. Courts may also look at the terms of the agreement itself to see if they are so unfair as to be unconscionable. ** MJ: evaluate fairness at the time of execution of the K | MIN: evaluate it at both the time of execution and enforcement** The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

What is the Mailbox rule "All"

To determine when an acceptance has been legally commuicated when there is some delay b/w sending and receing. The rule is an acceptance sent by mail is effective when the letter sent/posted. This rule does not apply: 1. If the offeree sends something else first (rejection/counter) 2. Other types of communications (revocations/rejections) 3. Option Ks; or It is unclear whether this applies to media

Fault - Cruelty

To prevail on the grounds of cruelty or inhumane treatment, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff's physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.

C. Heartbalm Actions

Traditionally, if a marriage failed to take place, the jilted party was permitted to file a heartbalm action, which is a civil suit for money damages based on the damage to the jilted party's reputation when the engagement was broken. Abolished by the majority of states, only nine jurisdictions currently recognize heartbalm actions, which include actions for breach of promise to marry, seduction, alienation of affection, criminal conversation, and jactitation of marriage (falsely holding oneself out as married). **EXAM NOTE: On the bar exam, assume that the jurisdiction has abolished heartbalm actions, unless the question states otherwise.**

Lien States (Majority)

Treats a mortgage as a lien that does not severe a joint tenancy

Self-Defense

Two Kinds of force: • Deadly force: Intended or likely to cause death or serious injury (e.g., shooting someone) • Non-deadly force: (e.g., locking a door; pushing someone

Strict Liability

Under strict liability, defendant will be liable no matter how careful they were Three general categories: (1) Abnormally dangerous activities; (2) animals; and (3) Defective products

"IT" Trespass to Land Necessity as a Defense to Trespass

available to a person who enters onto the land of another or interferes with that individual's personal property to prevent an injury or other severe harm. • Private Necessity • Public Necessity

Juris (1) Divisble Divorce Doctrine

Under the doctrine of divisible divorce, also known as ex parte divorce, a court may have sufficient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support. A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse. If a court makes such a determination, the defendant can challenge the court's orders due to the court's lack of in personam jurisdiction over the defendant.

Withdrawal from a Conspiracy Federal and MPC

a conspirator can withdraw prior to the commission of any overt act by communicating her intention to withdraw to all other conspirators or by informing law enforcement. • After an overt act—a conspirator can withdraw only by helping to thwart the success of a conspiracy

Negligence: Causation Cause in Fact - Loss of chance of recovery (medical misdiagnosis)

Under the traditional but-for analysis, a patient with less than a 50% chance of survival could not recover for negligent misdiagnosis because they were likely to die anyway; the doctor's negligence was not a "but-for" cause of the patient's death.

Ministeral functions

Undertaken to act in a particular way and failued

General Creditor

Unsecured one who has a claim, including a judgment, but who has no lien or security interest with respect to the property in question (i.e., the collateral). This type of creditor does not have a claim to particular property owned by the debtor. A secured party will always prevail over a general creditor with respect to the debtor's collateral.

Types of Pleadings - The Reply

Used by the plaintiff to answer a counterclaim

THE TRIAL PROCESS - Jury Jury Selection | For-cause challenges

Used to ensure an impartial jury • Jurors can be removed for cause when they reveal something that will prevent them from being impartial and deliberating fairly - E.g., if a juror knows one of the parties or the victim; if a juror was a friend of one of the witnesses; or worked for the defendant's company • There is no limit to the number of challenges for cause

Performance Implied Conds CL | Can a breaching party who fails to satisfy an express condition get paid in quasi-contract?

Usually not, express conditions must be strictly satisfied.

Civil cases

Usually, the standard is a preponderance of the evidence.

Regulation of the Content of Expression - Vagueness

Vague laws are ones that give no clear notice of what is prohibited and thus violate due process.

Motion for Judgment as a Matter of Law (JMOL) Standard

Viewing the evidence in the light most favorable to the opposing party, the evidence cannot support a verdict for that party, and the opposing party is therefore entitled to judgment as a matter of law. • Rule 50 provides the court must find that there is insufficient evidence for a jury reasonably to find for the nonmoving party.

DV: 1. Scope of Statute

Virtually every jurisdiction requires that the perpetrator of the violence be in a relationship with the victim or be a household or family member. Jurisdictions differ, however, on the scope of coverage. Most states include spouses, former spouses, children, unmarried parents of a common child, and household or family members. Some jurisdictions also cover dating relationships.

Affirmative Duty to Act - Assumption of duty

Voluntary Undertaking: a person who voluntarily aids or rescues another has a duty of reasonable in the performance of that aid or rescue.

Substantive Due Process Fundamental Rights Voting

Voting is a fundamental right to all citizens age 18 and over • Poll taxes are unconstitutional because they burden the fundamental right to vote. • Short-term (e.g., 30 days) residency requirements are permitted. • Congress controls the residency requirements for presidential elections. States control residency requirements for all other elections.

Covenant of the right to convey

Warrants that the grantor (i.e., the seller) has the right to convey the property;

Covenant against encumbrances

Warrants that there are no undisclose encumbrances on the property that could limit

Fifth Amendment Questions to Ask:

Was there a Fifth Amendment interrogation violation? Was the defendant in custody? Was there an interrogation? Was the defendant given warnings? Did he invoke his rights?

Fourth Amendment Questions to Ask:

Was there a search? Was there a seizure? If yes, was there probable cause?

Express Easements Scope - Be on the lookout for fact pattern!!

Watch out! Be on the lookout for fact patterns where a person has an easement to cross another's land and the holder of the easement seeks to redevelop or subdivide the property to add many new holders. Considerations: • Can the easement be transferred to the new holders of the estate? • Was the new use an ordinary foreseeable development?

LL & Tenant | Tenancy for Years - Creation

What is required to create a tenancy for years? o An agreement by the landlord and the tenant; o Purpose is to demonstrate the intent to create a leasehold o If the term is longer than one year, then the agreement must be signed and in writing because of the Statute of Frauds.

Transferred Intent Doctrine

When a defendant has the requisite mens rea for committing a crime against Victim A, but actually commits the crime against Victim B, the law transfer the intent from Victim A over to Victim B. • Transferred intent does not apply to attempted crimes, only to completed crimes.

5. Finalizing Divorce

When a divorce is initially granted, many states do not permit a divorce to be finalized until a specified period of time has elapsed. This is known as an "interlocutory" decree. During this interlocutory period, neither spouse can remarry.

5. Defenses void marraige

When a marriage is void, the only way to defend against the annulment is to deny the existence of the impediment that voided the marriage. Removing the impediment merely makes the marriage voidable, but it will not necessarily prevent the annulment.

Error in the debtor's name Exception

When a standard search of the filing office records under the debtor's correct name would disclose the financing statement, the erroneous name does not make the financing statement seriously misleading and it will be valid.

State Regulation and Taxation of Commerce Dormant Commerce Clause - No discrimination against out-of-state interest Exceptions | State as Market Participant

When a state is buying or selling goods or services, it can choose to deal with only in-state persons.

Negligence: Special Rules of Liability Pure Emotional Harm—Negligent Infliction of Emotional Distress (NIED) | Bystander recovery

a bystander can recover for NIED if the bystander: 1) Is closely related to the person injured by the defendant; 2) Was present at the scene of the injury; and 3) Personal observe the injury. These are proximity requirements—relational, geographic, and temporal

The Public Safety Exception

When public safety is at risk, the police do not have to give Miranda warnings before questioning

Necessity at severance:

When the estates were severed into two separate estates (severance), one of the properties became virtually useless without an easement • "Necessity" in a strict sense • Ends when it is no longer necessary

Land Use - Nonconforming Uses "Post-Ordinance Nonconforming Properties"

When the property owner requests a change after the zoning ordinance is in place. Variance - Owner applies for a variance, essentially permission to violate the zoning rules 1) Use variance: 2) Area variance:

Land Use - Nonconforming Uses "Existing Nonconforming Properties"

When zoning is changed and a structure does not satisfy the zone's requirements, it is called a "nonconforming use." o The goal of the property owner is to get the nonconforming use grandfathered in. o Vested rights: If the project is in process when the change happens, the developer must have the proper building permits by the time the ordinance takes effect. The developer must also demonstrate the project was ingood faith.

Venue

Where among the courts in this judicial system is the appropriate court to hear the case • Federal system: Whether this district is a proper court to hear this action It is the defendant's responsibility to object if venue is improper. • Failure to make a timely objection results in waiver Federal law—claim of improper venue must be made at the first opportunity or it is waived. • Either a pre-answer motion to dismiss if the defendant chooses to file one, or the defendant's answer, if no pre-answer motion is made State and federal venue rules are completely different.

Condominiums

Where individual units are owned outright, but common areas are owned collectively as tenants in common;

Seizure Test

Whether a reasonable person would feel free to disregard the officer • Seizure—Ramming a suspect's car in an attempt to stop the car • Not a seizure—Running over a third party while chasing a suspect (because the officer did not intend to stop the third party)

Equipment

a catchall class, consists of goods that are not consumer goods, farm products, or inventory. It usually refers to goods that are used or bought for use primarily in a business, such as employees' desks or machinery used in manufacturing.

CS: (3) Personal Jursidiction Over an OOS Parents

With respect to proceedings to establish or enforce child support or to determine parentage, a court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA), which has been adopted by every state. The ways in which a court can obtain personal jurisdiction are: i) Personal service on the defendant parent; ii) Consent of the defendant parent, such as by entering an appearance in the action; iii) Past residency with the child in the state; iv) Past residency in the state and the provision of prenatal expenses or support for the child; v) Residency of the child in the state as a result of acts or directives of the parent defendant; vi) The parent defendant engaged in sexual intercourse in the state, and the child may have been conceived by that act; vii) The parent defendant asserted parentage in the putative father registry maintained by the state; or viii) Any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction. SC has not addressed the constitutionality of this.

Regulation of Unprotected and Less Protected Expression Fighting words

Words likely to provoke an immediate breach of peace. • General vulgarity is not enough. • Must be aimed/targeted at someone, and that person might hit back • In theory, fighting words are not protected speech because In fact, all fighting words statutes on the bar exam are unconstitutionally vague and/or overbroad (e.g., laws against "hate speech").

Defenses "IT" | Privilege of Arrest - Private citizen Is it a defense to make a reasonable mistake as to the identity of the felony?

YES

Can extrinsic evidece be admitted to clarify an ambiguous description in a deed?

Yes

Can the Deed be based on monuments or physical attributes of the property?

Yes

Does the LL failure to comply with applicable implacable codes constitute a breach?

Yes

In a commercial lease, can the LL place the duty to repair on the tenant?

Yes

Performance Implied Conds CL | If payment must be made (because there is only a minor problem) can the nonbreaching party recover damages for the deficiency?

Yes o Typically measured as the cost to complete the performance o Sometimes limited to the diminution in market value

Can a borrower waive the right to redeem in exchange for consideration?

Yes - A court is going to be very skeptical of this provision, as it will prevent the borrower from recovering before foreclosure.

Does IWH apply to family properties?

Yes - Usually multi-family buildings; not CL

Real covenants can be recorded. Are they subject to recording acts? ______________________________.

Yes they are

Remedies | 2. Anticipatory Repudiation - Can a party retract its repudiation?

Yes, as long as the other side has not: o Commenced a law suit; or o Acted in reliance on the repudiation (by materially changing its position).

Judicial Lien Creditor

a creditor who acquires a lien on the collateral by a judicial process, rather than by operation of law. A perfected security interest has priority over a judicial lien creditor, but the judicial lien creditor had priority over an unperfected security interest Even if the security interest is unperfected at the time the judicial lien comes into existence, the secured party will have priority if the only reaso

"IT" Battery - Damages "Eggshell-plaintiff" rule

a defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be.

Affirmative Duty to Act - By authority

a person with the ability and actual authority to control another has a duty to exercise reasonable control.

Negligence: Special Rules of Liability Pure Emotional Harm—Negligent Infliction of Emotional Distress (NIED) | Zone of danger

a plaintiff can recover for NIED if: • The plaintiff was within the "zone of danger" of the threatened physical impact; and • The threat of physical impact caused emotional distress.

2. Tricks Regarding Consideration "APPI"

a. Adequacy of consideration (nominal consideration) b. Illusory promise c. Past consideration is not consideration. d. Promising not to sue

Prosecutors | Four Prosecutorial Duties

a. Brady doctrine b. A prosecutor may not knowingly present false testimony c. A prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (i.e., cannot violate the defendant's Sixth Amendment right to counsel). d. A prosecutor may not comment on a defendant's failure to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant's Fifth Amendment right to remain silent). • A prosecutor can comment on a defendant's silence before his Miranda rights attached.

Strict Liability - Animals Wild Animals

animals that, as a species or class, are not customarily kept in the service of humankind This definition of "wild animals" is derived from the Second Restatement. The Third Restatement narrows this definition by excluding animals that pose no obvious risk of causing substantial personal injury.

#CS (1) Calculating Support

a. Income-shares model b. Percentage-of-income model c. Melson formula d. Deviations from child-support guidelines

Mandatory Disclosures Three Stages

a. Initial disclosures b. Disclosure of expert witnesses c. Pretrial Disclosures

Transfers By Mortgagor/Borrower

a. Liability of mortgagor/borrower b. Liability of subsequent transferee

When Can the Mortgagee/Lender Take Possession?

a. Lien theory state b. Title theory state c. Intermediate title theory state

SM: (1) Types of Support

a. Lump sum b. Permanent c. Limited Duration d. Rehabilitative e. Reimbursement f. Palimony

Exceptions to the Chronological "First in Time" Rule

a. Purchase-money mortgage exception b. Recording act exception c. Subordination agreement between mortgagees d. Mortgage modifications e. Future-advances mortgages f. After-acquired property

Defenses "IT" | Defense of Property

a. Reasonable force b. Deadly force c. Recapture of chattels (personal property) d. Force to regain possession of land

UCCJEA 7. Enforcement of Another State's Orders

a. Registration of order b. expedited enforcement of a child-custody determination c. Warrant for child custody d. Law enforcement

SOF Satisfied? | 4. Goods (UCC)

a. Signed writing b. part performance c. Custom-mad (or specially manufactured) goods d. Juducial Admissiong e. Confirming memo

Performance Implied Conds UCC | 4. Method of Tender/Delivery

a. Tender at Seller's place of business b. Shipment K (FOB Seller's Place of business) c. Destination K (FOB Buyer's palce of business)

Defenses "IT" | Self-Defense "I usually dream boat"

a. Use of reasonable force b. Duty to retreat c. Initial aggressor d. Injuries to bystanders

Defenses to Defamation Truth

absolute defense; a truthful statement cannot be actionable as defamation - P burden to prove falsity

"IT" Battery - Causation

act must result in contact of a harmful or offensive nature

Intentional Misrepresentation (Fraud) Damages MIN

allow only out-of-pocket losses (tort-like damages) or the cost of conforming

"IT" Private Nuisance

an activity that substantially and unreasonable interferes with another's use and enjoyment of land

Products Liability - Warranties Express Warranties

an affirmation of fact or a promise by the seller that is part of the basis of the bargain

Amendments to the Pleadings - Doctrine of Relation Back

an amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. This may be important for the purposes of complying with the applicable statute of limitations. An amendment will also relate back to the date of the original pleading if the law that provides the applicable statute of limitations allows relation back. • The key date for purposes of tolling the statute of limitations is the date of the original pleading, rather than the date of the amendment. - If the statute of limitations has NOT yet run (still open), this doctrine does not matter. - If the statute of limitations has run out, then relation back determines whether the amended pleading is allowed (relates back) or time-barred (does not relate back). On the exam, look for the limitations period, the date of the original pleading, and the date of the amendment. When you see that the original pleading was timely, but the amendment was not, then you know you are being asked about the doctrine of relation back.

Relations Among States | Interstate compact

are agreements among states. If the compact affects federal rights, Congress must approve.

Farm products

are goods that are crops or livestock and include supplies that are used or produced in farming. For goods to be considered farm products, the obligor must be engaged in a farming operation.

State Taxation of Interstate Commerce - Ad Valorem (value-based) Property Taxes Distinguish between two kinds of personal property because they are taxed differently: Commodities

are the goods that move from state to state. • States tax all commodities within their borders on a specified date (called tax day), but not goods that are merely in transit—the commodities have to come to rest in the state. • Rule: Pay the full tax to every state where goods are stopped for a rest on tax day. No taxes are due where they are merely transite.

State Taxation of Interstate Commerce - Ad Valorem (value-based) Property Taxes Distinguish between two kinds of personal property because they are taxed differently: Instrumentalities

are the transportation equipment that moves commodities (railroads, trucks, airplanes, etc.) • Fair apportionment of tax liability among states with a substantial nexus to the instrumentality. • Each state in which an instrumentality is used can tax the value of that instrumentality.

Consumer goods

are those goods acquired primarily for personal, family, or household purposes

Remedies | 10. Specific Performance/Injunction - Right of reclamation

arises when an unpaid seller tries to reclaim goods that were sold on credit when the buyer is insolvent o To assert this remedy, the following facts must be present: 1) The buyer is insolvent at the time of receipt of the goods; 2) The seller must demand the return of goods within 10 days of receipt (or within a reasonable time if the buyer misrepresented his solvency to the seller in writing within three months before delivery); and 3) The buyer still has the goods.

3-Party Beneficiary K | 2. Types of Third Parties - Creditors

arises when the promisee strikes a deal with the promisor in order to repay some earlier debt to the third party.

3-Party Beneficiary K | 2. Types of Third Parties - Donee Beneficiary

arises when there is no preexisting obligation, but the promisee clearly intends to confer a gift of enforcement on a third party.

Jurisdiction of the Supreme Court Appellate Jurisdiction | Adequate and Independent State Grounds (AISG) - If a state court decision is unclear

as to the basis of the decision (i.e., whether it is based on the state constitution or the federal constitution), the Supreme Court can review the federal issue. • If the Supreme Court agrees with the state court's decision of federal law, it affirms the decision. • If the Supreme Court disagrees with the state court's understanding of the federal issue, it remands the case to state court, so that the state court can reconsider state law.

Tangible Evidence | Documentary Evidence—Ways to Authenticate Reply letter doctrine

authenticated by evidence that it was written in response to another letter

Notice and Service of Process Federal Rules

authorize service in accordance with state law where the federal court sits. • Default rule is that service in federal court is okay as long as it follows the law of the state in which the federal court is based.

Impeachment

calling into question the witness's credibility: 1. Show that the witness is dishonest; bad character for truthfulness/untruthfulness 2. Bias 3. Sensory Competence

Conspiracy - Agreement

can be exclusive or implicit • Simply knowing a crime is going to occur and doing nothing about it does not turn a bystander into a co-conspirator; there must be an agreement. • If what the conspirators agree to do is not a crime, there is no conspiracy even if they think what they're doing is wrong.

"IT" Intent - Children and Mentally Incompetent Persons

can be held liable for intentional torts if they act with the requisite intent

Negligence: Vicarious Liability Business Partners

can be liable for the torts of other business partners committed w/in the scope of the business's purpose.

"IT" Public Nuisance - Public official

can bring an action on behalf of the public to abate the nuisance—e.g., a state attorney general can sue to enjoin polluting activity that harms public health

Burglary - Breaking

can involve pushing open or smashing a door or window, or obtaining entry by fraud Someone who comes inside with the owner's consent and then steals something is guilty of larceny (and possibly robbery if he uses violence or threat of violence) but not burglary because there was no "breaking."

Negligence - Invitees Standard of Care Non-delegable duty

cannot avoid the duty by assigning care of the property to an independent contractor

Defenses "IT" | Defense of Property - Deadly force

cannot be used A person may never use deadly mechanical devices to defend property (e.g., a spring gun).

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Timeliness - Mootness

cases are overripe and dismissed whenever they become moot. Cases can become moot during trial or on appeal, where the judgement below is dismissed as if it never happened.

Remedies | 1. Constructive condition of exchange (CCE) - CL

failure to substantially perform means the other side may withhold their own performance Cannot withhold payment if the other side has substantially performed, but may be entitled to recover for the breach

Typically two types of marriage recognized by law

ceremonial (or statutory) marriage and common-law marriage.

Equal Protection - Quasi-Suspect Classifications (Gender and Legitimacy) - Gender

classifications are almost always invalid (e.g., Oklahoma had a law permitting women to legally drink alcohol at a younger age than men). • Permissible examples of gender classifications: - Statutory rape can be gender-specific (historically); and - The draft.

Defenses "IT" | Implied Consent - Injuries arising from athletic contests

consent within the scope of the sport unless the conduct is reckless and goes outside of the scope

Defamatory Constitutional Requirements

constitutional limitations will depend on the type of plaintiff and the content of the statement - Type of plaintiff - public concern?

Judicial Notice - Criminal case

court will instruct the jury that it may (but need not) find that fact

Judicial Notice - Civil case

court will instruct the jury that it must accept the fact as proven

Products Liability - Strict Products Liability Defenses | Contributory negligence

courts hesitate to allow the plaintiff's negligence to completely bar the plaintiff's recovery against the defendant for a defective product.

Products Liability - Strict Products Liability Defective Product | Inference of defect

courts may allow proof of a defect by circumstantial evidence, especially when the defect causes the product to be destroyed.

"IT" IIED - Causation

defendant's actions must be a cause in fact of the plaintiff's harm.

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Political Questions Examples - Political gerrymandering

in theory might be unconstitutional, but in fact the Supreme Court found no judicially manageable standards for determining how districts should be drawn. (Note that state courts have found that it violates state constitutions.)

Defamatory Constitutional Requirements Types of plaintiffs - Private individuals

dont count as public

Negligence: Vicarious Liability Respondeat Superior - Intentional torts

employers are generally not liable for the intentional torts of employees Exception: when the employee's conduct is within the scope of employment (e.g., force is inherent in the employee's work)

"IT" Trespass to Land Physical Invasion

includes causing objects to invade the land & walking on the land

Defenses "IT" | Self-Defense - Use of reasonable force

force that is purportionate to defend against an offensive contact or bodily harm (i.e., not excessive).

A foreclosure is a ______________________________ sale of an asset to pay off a debt.

forced sale

Equal Protection (Race, Ethnicity, and National Origin) General Considerations - One Equal Protection Clause

found in the 14th Amendment • Applies to localities and states • Though no Equal Protection Clause guarantee technically applies to the federal government, equal protection concepts are applied to the federal government via the Due Process Clause of the 5th Amendment. Therefore, states and localities have both equal protection and due process; for the federal government, equal protection and due process are called 5th Amendment Due Process.

Negligence: Vicarious Liability Torts Committed by Independent Contractors - Vicarious liability for an independent contractor's torts Apparent agency doctrine

general agency doctrine; an independent contractor (IC) will be treated as an employee if: • The injured person accepted the IC's services based on a reasonable belief that the IC was an employee, based on manifestations from the putative employer; and • The IC's negligence is a factual cause of harm to one who receives the services, and such harm is within the scope of liability.

"IT" Public Nuisance - Private individual

generally cannot recover unless the individual has been harmed in a special or special way, different from the general public

Negligence: Breach of Duty — Compliance with a statute

generally does not constitute reasonable care; does not mean the person was NOT negligent

Products Liability - Strict Products Liability Defenses | Disclaimers, limitations, and waivers

generally it doesn't bar strict liability claims for defective products

Accessions

goods that are physically united with other goods in such a manner that the identity of the original goods is not lost, such as memory installed in a computer, or tires installed on a car. A security interest that is created in collateral that becomes an accession is not lost due to the collateral becoming an accession.

Equal Protection - Non-Suspect Classifications (Age and Wealth) - Sexual Orientation

has never been held to be a fundamental right. However, the court has interpreted the 1964 Civil Rights Act to protect employees from discrimination based on gender identity or sexual orientation, so the issue is mostly dealt with by statute.

"IT" Conversion

intentionally committing an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.

Taxing, spending, and commerce The general rule for the bar exam:

i) Pick the taxing power when the law involves a tax; ii) Pick the spending power whenever federal money is spent or disbursed; iii) When in doubt, pick the commerce power.

Multi-Party Litigation | Permissive Joinder of Parties Any number of defendants may be joined in the same action if:

i) The claims against them arise out of the same transaction or occurrence (or series); AND ii) There is a common question of law or fact • These rules apply assuming there is SMJ. All joinder rules assume that there is SMJ. Saying that something can be done as a matter of the joinder rules is not to say that the court will necessarily have jurisdiction over this claim or this party.

Miranda Warnings - The police must cease questioning if either of the following occurs: Invoking the right to counsel | If the right to counsel is invoked, all questioning must stop until either:

i) The lawyer is present; or ii) The defendant affirmatively initicates contact with police. Police cannot generally go back to the defendant.

Multi-Party Litigation | Permissive Joinder of Parties Any number of plaintiffs may join if:

i) They assert claims arising out of the same transaction or occurrence or series of transactions or occurrences; AND ii) There is a common question of law or fact

Erie Doctrine | No Federal Statute or Rule on Point The twin aims of Erie

i) To avoid forum shopping; and • Situations in which parties have incentives to choose (or avoid) federal court based on perceived advantages and disadvantages of federal law versus state law ii) To avoid the inequitable administration of justice • Situations where there is a different result in state and federal courts, so winning and losing turns on the accident of diversity of citizenship

Defenses "IT" | Express Consent - Consent by fraud

invalid if it goes to an essential matter. If the fraud only goes to a collateral matter, consent is still a valid defense.

SOF | The main-purpose exception

if the main purpose in agreeing to pay the debt of another is for the surety's own economic advantage, then we are NOT in SOF world.

Strict Liability - Animals Domestic Animals Known to be dangerous

if the owner know or has reason to know that the particular animal has dangerous propensities, the owner is strictly liable.

Negligence: Causation Cause in Fact - Multiple or indeterminate causes Concert of action

if two or more tortfeasors were acting together collectively and that causes the plaintiff's harm, then all defendants will be jointly and severally liable.

Defenses to Defamation Consent

if you consent to the defamation, you cannot sue.

"IT" False Imprisonment - Time of Confinement

immaterial to the tort

Equal Protection (Race, Ethnicity, and National Origin) Suspect Classifications (Trigger Strict Scrutiny and Arise under Equal Protection) — Race, Ethnicity, or National Origin: Affirmative action is allowed?

in the context of preferential admissions to colleges and universities. • Preferential admissions are allowed if necessary to achieve a diverse student body and diversity is essential to the education. 1) Must be a strong showing that racial preferences are essential to achieving a diverse class. 2) Racial preferences must be "holistic" (can be built into an evaluation if every student is evaluated individually in a holistic way) and flexible. 3) Quotas are not allowed. 4) Separate admissions tracks or procedures for minority applicants are not allowed. • Preferential admissions not allowed for secondary school (though schools may be located and attendance zones created to maximize diversity).

Negligent Misrepresentation

failure to take due care in providing information (1) The defendant provided false information to a plaintiff; (2) As a result of the defendant's negligence in preparing the information; (3) During the course of a business or profession; (4) Causing justifiable reliance; and (5) The plaintiff is either: • In a contractual relationship with the defendant; or • The plaintiff is a third party known by the defendant to be a member of the limited group for whose benefit the information is supplied

Takings: Just Compensation

fair market value at the time of the taking

Larceny Elements - Taking

involves any movement of property, however slight

Assignment

is a complete, transfer of the tenant's remaining term.

Debtor

is a person who has an interest, other than a security interest or other lien, in the collateral, such as the sole owner of the collateral. Although the debtor is usually also the obligor, the debtor need not be.

Obligor

is a person who must pay (or otherwise perform) with respect to the obligation that is secured by a security interest in the collateral. For example, a business that receives a loan from the bank is a typical obligor.

Sublease

is a transfer for less than the entire duration of the lease. If the tenant retains a reversionary interest in the leasehold, then the transfer is a sublease.

Establishment of Religion - Endorsement

is a violation of the Establishment Clause for the government to endorse one religion over another and also to endorse religion over non religion. • But, many endorsements are upheld, such as "In God We Trust" on currency. The Supreme Court wants to prevent coercive endorsement of religion (one that might override individual choice).

Security Interest

is an interest in personal property or fixtures that secures payment or performance of an obligation.

Equal Protection - Non-Suspect Classifications (Age and Wealth) - Wealth

is not a suspect or quasi-suspect classification, but the government has to waive filing fees for indigents when charging the fees would deny a fundamental right. - Divorce - Marraige - Appeals

Secured Party

is the person in whose favor a security interest is created under the security agreement. Usually, the secured party is the person who has loaned money or extended credit to the obligor. For example, a bank that loans money to a business is a typical secured party.

Kidnapping Malicious Burning Elements - Burning Modern

it is arson even if there is no damage to the structure of the building or if the fire was caused by an explosion.

Defenses "IT" | Implied Consent - Emergencies

it is fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent

Defenses "IT" | Defense of Property - Reasonable force

may be used if the person reasonably believes it is necessary to prevent tortious harm to the property

Withdrawal from a Conspiracy CL

it's impossible to withdraw from a conspiracy, because the crime is completed the moment the agreement is made.

Strict Liability Defenses Comparative Negligence

jurisdictions vary: • In some, the plaintiff's negligence does not bar recovery; • In others, and under the Third Restatement, the plaintiff's negligence will diminish her recovery

Negligence Immunities - Intra-Family Immunities

largely eliminated; a family member can be sued for negligently injuring another family member • Core parenting activities—immunity still applies

Negligence: Breach of Duty — Custom Professionals

lawyers, doctors, accountants, electricians Custom is admissible and dispositive • Compliance with custom is a shield = not a breach • Deviation from custom is a sword = breach

Defenses "IT" | Defense of Others

may use reasonable force in defense of others, if the others would be entitled to use self-defense

Negligence: Breach of Duty — Custom

majority practice within an industry or profession (1) Generally (2) Professionals (3) Physicians

Negligence: Breach of Duty — Res Ipsa Loquitur Mordern Trends Comparative-fault jurisdictions

many comparative-fault jurisdictions (discussed later) loosely apply the third element (i.e., that the harm was not caused by any action by the plaintiff).

Negligence: Breach of Duty — Res Ipsa Loquitur Mordern Trends Products liability

many courts ignore the exclusivity requirement when it is clear that the defect originated upstream of the package's wrapping.

Strict Liability - Animals Domestic Animals "Dog-bite" statutes

many states hold dog owners strictly liable for injuries caused by dogs "Dog-bite" statutes vary widely from state to state.

Negligence - Trespassers "Attractive nuisance" doctrine

may be liable for injuries to children trespassing on the land if: • An artificial condition exists in a place where the owner know or has reason to know that children are likely to trespass; • The land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm; • The children, because of their age, do not discover or cannot appreciate the danger; • The utility of maintaining the condition is slight compared to the risk of injury; and • The land possessor fails to exercise reasonable care

Negligence: Special Rules of Liability Pure Emotional Harm—Negligent Infliction of Emotional Distress (NIED) | Physical manifestation

most jurisdictions require some physical manifestation of distress (such as nausea, insomnia, or miscarriage).

Subject-Matter Jurisdiction: Removal Jurisdiction Transfer

moves case from one federal court to another federal court.

Miranda Warnings - Interrogators

must ask whether the defendant understand the rights • I.e., Defendant understands English, can hear, and actually heard what was said

Performance Implied Conds UCC | 5. Risk of Loss Problem

o Arises when there is a goods contract followed by damage or destruction of the goods before the buyer receives them. Who will bear the loss, the seller or the buyer? 1) Check whether the parties have already dealt with the risk problem in the contract. If so, their agreement will control. 2) If not, ask whether either party has breached (typically another part of the contract). • If so, the breaching party bears the risk of loss. • Is this true even if the breach is totally unrelated to the delivery damage? Yes. 3) If there is no breach, and the goods are being shipped, then ask what type of delivery contract it was: • If it was a shipment contract, then the risk of loss during delivery rests with the buyer • If it was a destination contract, then the risk of loss during delivery rests with the seller. 4) In all other cases, ask whether the seller is a merchant. • If so, the risk of loss stays with the seller until the buyer receive the goods. • If not, the risk of loss moves to the buyer when the seller tender the goods.

Excuses | 4. Performance is Excused Because the Initial Contract has been Modified or Canceled

o Can both parties agree to just walk away from a contract? yes, as long as there is some performance remaining from each side. Otherwise, there is no consideration for this modification. **This is called rescission (or cancellation) by mutual agreement.**

Land Sale K's Formation - Doctrine of Merger

o Covenants under the contract are merged into the deed and any remedy will flow from the deed.

Scope of Recording Acts - What types of interests are covered

o Deeds; o mortages; o Leases; o options; o Judgments affecting title; o Other instruments creating an interest in land, such as easement or covenant ** Title by AP is NOT covered. Recortding statutes do not cover interests created by operation law**

How is Implied Reciprocal Servitude created?

o Developer must intend to create a covenant (i.e., promise) on all plots in the subdivision; o Promises must be reciprocal (i.e., benefits and burdens each and every parcel equally); o Must be negative rather than positive (i.e., it must be a restriction on the owner's use); o A successor must be on notice of the restriction (at least inquiry notice); and o Must be a common plan or scheme.

SOF Satisfied? | 2. A Writing Signed by the Party Against Whom the Contract is Asserted

o Do you need both signatures on the writing? No. o Does the writing have to be a formal contract? No. o It must cover the fundamental facts: 1) Show that a contract has been made; 2) Identify the parties; and 3) Contain the essential elements of the deal.

Land Use - Water Rights Riparian Rights Approach

o Doctrine of riparian rights holds that landowners who border a waterway own the rights to the waterway. The right depends upon whether the landowner is located near the water. o Riparians share the right to reasonable use of the water, such that one riparian is liable to another for interference with the other's use.

Excuses | 2. Death after a Contract

o Dying does not normally excuse liability on a contract that has been made. o Ask whether there is something special about the person performing on the contract, such that it makes no sense to continue if they die.

Land Use - Water Rights Prior Appropriation Approach

o First in time, first in right: The first person to use the water, regardless of where their land is located, has the rights to the water. o Beneficial use: In a prior appropriation jurisdiction, the user must put the water to a beneficial use. Any productive use satisfies this standard.

Land Sale K's Formation - Two Stages

o First: Contract stage (where parties negotiate terms) o Then: Deed stage (where parties transfer property)

SOF Satisfied? | 1. Service Contracts that Cannot be Performed within One Year

o Full performance of a services contract by either side satisfies the Statute of Frauds o Part performance of a services contract does not satisfy the Statute of Frauds.

"IT" Assault - Mere Words

o Generally, "mere words do not constitute an assault." o Words can suffice in certain circumstances. If the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.

Scope of Recording Acts - Who is not covered by recordings acts?

o Grantees who acquire title by gift, intestacy, or devise are not protected by recording acts. o The policy behind recording acts is that we want to protect those who make economic investments by acquiring property.

Excuses | 1. Impossibility and Impracticability

o Look for these common fact patterns: • Performance becomes illegal after the contract is formed; • The subject matter of the contract is destroyed; or • In a services contract with a "special person," the performing party dies or is incapacitated. o BUT, something that just makes performance more expensive than expected will not normally excuse performance. o Look for something that hinders the ability to perform, not just the cost to perform.

Defense of Formation | 4a. Misrepresentation

o Misrepresentation—a statement at the time of contracting that is not true. Can be intentional (fraudulent) or accidental o To assert this defense, the party must show: 1) A misrepresentation of a present fact (not opinion); 2) That is material OR fraudulent (intentional); and 3) That is made under circumstances in which it is justifiable to rely on the misrepresentation.

"IT" Assault - Plaintiff's Apprehension

o Must be reasonable o Plaintiff must be aware of the defendant's action

"IT" Assault - Imminent

o Must be without significant delay o Threats of future harm or hypothetical harm are not sufficient.

Defense of Formation | 4c. Nondisclosure

o Nondisclosure—the other party does not learn the truth about something, but now you just remain quiet Normally, you do not need to tell the other side about all material facts related to the deal. Except: A special fiduciary relationship or active concealment

Remedies Lmts on Ex. Damg. | 2. Unforeseeable Consequential Damages

o Not recoverable unless the breaching party had some reason to know about the possibility of these special damages at the time of contracting (the Hadley rule) o Two categories of damages: 1) General damages—the type of loss that almost anyone would incur from a breach • Includes incidental damages—the cost of storing rejected goods, or finding a new buyer, or finding a replacement vendor 2) Consequential damages—losses that are unique or special to this plaintiff

Land Sale K's Exceptions - Part Performance

o Partial performance by either the seller or the buyer is treated as evidence that the contract existed. o Look for at least two acts of performance, such as: - Payment of all or part of the purchase price; - Possession by the purchaser; or - Improvements by the purchaser. Many states require at least two acts of performance for the doctrine of partial performance to apply. On the MBE, look for at least two acts.

Excuses | 3. Frustration of Purpose

o Performance can still occur, but something has happened to undermine the entire reason for the creation of the contract. o This is very rare—the event must be extreme and not previously allocated to one of the parties.

3-Party Beneficiary K | 1. Identify the Parties

o Promisor—the person making the promise that the outsider is trying to enforce o Promisee—a contractual counterparty to that promise; this person could presumably enforce the contract, but is not doing so. o Third-party beneficiary—the outsider suing the promisor for the breach

1. General Warranty Deed

o Provides the protection amount of title protection; the grantor warrants title against all defects, even if the grantor did not cause the defects.

Recording Acts race-Notice Stautes

o Rule: A subsequent purchaser wins if two requirements are met: 1. Acquired without notice of a prior unrecorded conveyance; and 2. Records first o Key language: "In good faith" or "Without notice" plus "First duly recorded" or "First recorded"

Land Use - Zoning Basics

o State and local governments may regulate the use of land through zoning laws. o Zoning laws are enacted for the ______________________________ and ______________________________ of the community. States have authority to zone through police powers. Local governments get power to zone through specific enabling acts.

Equitable Servitudes Fixtures Removal

o The buyer of real property is generally entitled to the chattel, unless the seller reserves in the K the right to keep the chattel. o Life tenants and tenants: Presumption is that they can remove fixtures unless doing so would permanently damage the property

3-Party Beneficiary K | 2. Types of Third Parties

o The critical issue is whether the third party is an intended or an incidental beneficiary. Intend beneficiaries have the right to sue. Incdental beneficiaries do not. o To determine whether a given third party is an intended or an incidental beneficiary, ask whether the initial counterparties (promisor and promisee) intended to convey enforcement rights to the third party in the event of a breach.

Special Warranty Deed

o The grantor warrants against defects only caused by the grantor. o This type of deed provides a lesser amount of title protection than a general warranty deed. o It includes the same six covenants as a general warranty deed, but they only apply to the acts (or omissions) of the grantor.

3-Party Beneficiary K | 3. Revoking Third-Party Rights

o The initial counterparties might try to revoke or modify the third-party's right to enforce the contract. o Ask whether: (1) the third party knows about the promise and (2) has changed position in reasonable reliance on the promise. If so, the third party may be able to make out a claim under promissory estoppel o contract defense against the third party that he would be entitled to assert against the promisee.

Remedies S. Probs w/Exp. Damg. | 3. Economic Waste and Diminution in Market Value Damages

o The normal measure of expectation damages is the cost to complete the job. o Sometimes cost-to-complete damages will dramatically overcompensate the plaintiff. o Diminution in market value ("DMV")—How much lower is the market value of what you got versus what you wanted? The breaching party normally must have acted in an innocent and unintentional manner for DMV damages.

Conditional Sale and Repurchase

o The owner sells property to the lender who leases the property back to the owner in exchange for a loan. o The lender gives the owner the option to repurchase after the loan is paid off.

Land Use - Subjacent Support

o Think mineral rights. o The surface landowners have the right not to have their land subside from the activities of the owners of underground rights.

Remedies | 3. Money Damages - CL Expectation Damages

o This is the normal way to calculate damages in contracts. o Goal—to put a party in the same economic position it would be in if the contract had been performed as promised. o Measured by comparing the value of the performance without the breach to the value of the performance with the breach.

Land Use - Public nuisance

o Unreasonable interference with the health, safety , or property rights of the community. o Private party: Must show that she suffered a different kind of harm than the rest of the community.

Land Use - Nuisance Remedies

o Usual remedy is damages; o If money damages are inadequate or unavailable, the court can impose injunctive relief.

Scope of Recording Acts - Who is covered by recording acts?

o subsequent purchasers **term "purchaser" means someone who has acquired an interest in land**

Negligence: Breach of Duty — Custom Physicians Traditional

physician in the "same or similar" locality

Defenses "IT" | Parental Discipline

parents may use reasonable force as necessary to discipline children

1. Bargained-For Consideration "C" "Ask the 3 questions"

parties exchange promises involving a legal detriment or benefit Exam Tip 3: The bar examiners like to test situations in which bargained-for consideration is missing. Ask the following questions: 1. Who is making the promise that needs to be supported by the law? (That person is the promsiro; the other party is the promisee 2. Is there a benefit to. the promisor or a detriment to the promisee? (You just need one, not both) 3. Was this bargained-for? (In other worse, did the parties think that they were mkaing a deal when they exchanged promises?) **Not doing something that you are legally entitled to do is a legal detriment**

Remedies | 1. Constructive condition of exchange (CCE) - UCC

perfect tender: Seller must strictly perform all obligations or be in breach. The doctrine of material breach applies to installment sales.

Devices to Create or Destroy Diversity Assignment of a claim

permitted so long as the assignment is real (for value), complete, and not collusive • Partial assignment of a claim for the purpose of debt collection does NOT affect citizenship if the assignor retains an interest in the claim.

"IT" False Imprisonment - Damages

plaintiff can recover nominal damages actual damages are also compensable.

Who has priority? A PMSI in inventory or livestock

prevails over all other security interests in the same collateral, even if they were previously perfected, if (i) the PMSI is perfected by the time the debtor receives possession of the collateral, and (ii) the purchase‐money secured party sends an authenticated notification of the PMSI to the holder of any conflicting security interest before the debtor receives possession of the collateral. The notification must state that the purchase‐money secured party has or expects to have a PMSI in the debtor's inventory or livestock and it must include a description

Physician-Patient Privilege Exceptions

privilege does not apply if: • The information was for reasons other than treatment; • The communication was made for some illegal purpose; • A dispute exists between the doctor and patient; or • The patient agreed to waive the privilege

Character Evidence - Criminal Evidence Defendant's good character | Opens the door

prosecutor is free to rebut the defendant's claims by attacking the defendant's character • Prosecutor can cross-examine the defendant's character witnesses with questions about specific act from the past.

"No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice who shall first record" is an example of language that would be seen in which of the following types of statute?

race-Notice Stautes

A subsequent purchaser who bought the property without notice of the prior purchase, provided that the subsequent purchaser records first

race-Notice Stautes

Certification of Pleadings - Attorney certifies that to the best of her knowledge after

reasonable inquiry: • There is NO improper purpose (e.g., harass or needlessly increase costs); • The legal contentions are warranted by existing law or by a non-frivolous argument for a change in the law; and • The factual allegations have evidentiarysupport or are likely to have such support after an opportunity for discovery.

Express easements are subject to ______________________________ statutes.

recording

Intentional Misrepresentation (Fraud) Damages MJ

recovery is the "benefit of the bargain": the difference between the actual value received in the transaction and the value that would have been received if the misrepresentation were true (contract-like damages)

Negligence - Possessors of Land Standard of Care

relates to negligence in the maintenance of property (e.g., artificial or natural conditions on the land) - Two Approaches: 1. Traditional tripartite structure 2. Modern (California) way

Intentional Misrepresentation (Fraud) - Justifiable Reliance

reliance is NOT justifiable if the facts are obviously false (common sense) or it is clear that the defendant was stating an opinion.

Notice and Service of Process Personal service Requirement

statutory authorization and constitution validity Constitutional test: notice must be reasonable under the circumstances Statutory authorization: specific rules that vary from state to state - federal rule allows service in accordance w/venue state rules If state ok - then Fed. Ok Except for the specific federal rules

Negligence: Vicarious Liability Automobile Owners - Family-purpose doctrine

the owner of an automobile may be vicariously liable for the tortious acts of any family member driving the car with permission.

Negligence: Vicarious Liability Automobile Owners - Owner liability statutes

the owner of an automobile may be vicariously liable for the tortious acts of anyone driving the car with permission.

Larceny Elements - Property

tangible personal property (e.g., wristwatch, goods from a store) • Not intangible property (e.g., copyright), real property, or services • There are modern "theft of services" statutes that criminalize obtaining a service, e.g., a massage, and then not paying for it. That conduct does not fall under common law larceny.

"IT" IIED - Damages

the plaintiff must prove severe emotional distress beyond what a reasonable person should endure. • Often, the outrageous nature of the conduct is evidence of the plaintiff's distress. • Hypersensitivity—if the plaintiff experiences an unreasonable level of emotional distress, then the defendant is only liable if aware of the plaintiff's hypersensitivity. • Physical injury is not required (except in the case of a bystander discussed above). ** Intentional infliction of emotional distress (IIED) is often tested against negligent infliction of emotional distress NIED**

Defamatory Constitutional Requirements Constitutional limitations - Public official/public figure

the plaintiff must prove that the person who made the statement either knew that it was false or acted with reckless disregard for the truth Also called the "actual malice" standard - Malice here does not mean motive, just that the defendant either knew that the statement was false or was reckless with regard to the truth.

Products Liability - Strict Products Liability Elements of a Claim

the plaintiff must show: • The product was defective (in manufacture, design, or failure to warn); • The defect existed when the product left the defendant's control; and • The defect caused the plaintiff's injury when the product was used in a foreseeable way. Strict liability can apply to multiple parties in the chain of producing and selling the product. Potential defendants are discussed more below.

Strict Liability Defenses Assumption of the Risk

the plaintiff's assumption of the risk is a complete bar to recovery.

Strict Liability Defenses Contributory Negligence

the plaintiff's contributory negligence not bar recovery.

Products Liability - Strict Products Liability Defenses | Comparative fault

the plaintiff's own negligence will reduce his recovery in a strict-products-liability action.

When the obligor uses the property for multiple purposes

the principal use to which the obligor puts the property determines the class of the goods.

Products Liability - Warranties Implied warranties | Fitness for a particular purpose

the seller knows the particular purpose for which the product is being sold, and the buyer relies on the seller's skill or judgment.

The Warrant Requirement If a warrant does not meet the above requirements

the warrant is invalid, and the items seized pursuant to the warrant will be exclude/inadmissible from the prosecution's case-in-chief.

Attempt

• Attempt is a specific crime 1) Specific intent to commit a particular criminal act; and 2) substantial step towards perpetrating the crime • Attempt is a specific-intent crime even when the completed offense is only a general crime.

Attempt Merger

• Attempt merges into a complete offense. • You cannot be convicted of both attempted murder and murder of the same person in the same episode. • You can be convicted of both conspiracy to commit murder and murder.

Equal Protection - Suspect Classifications Continued Citizenship status Exception

two important exceptions to strict scrutiny for citizenship status apply: • Federal government • State and local participation in government functions

Injunction Notice Issues Ways to stop behaviors Temporary Restraining order (TRO)

used to preserve the status quo until the court can make a decision on the preliminary injunction. • Temporary measure • Cannot last more than 14 days, unless the other party agrees or the court finds good cause for an extension for "light period." • Not notice required if moving party shows, under oath, that delay would cause immediate irreparable injury • Attorney must certify in writing efforts to give notice, and why notice is not required • No appeal, unless functioning as a preliminary injunction

What is a "Search"? Government Conduct

• Can occur with physical intrusion upon private property • A search can occur without a physical intrusion Using some types of technology constitutes a search.

Negligence: Breach of Duty — Statutes

when a law or statute establishes a particular standard of care, violation of the law constitutes a breach; unexcused statutory violations constitute negligence breach = negligence pre se

Subsequent Remedial Measures Exception

when evidence of subsequent remedial measures is relevant for some other purpose • E.g., ownership, control, feasibility

Remedies | 3. Money Damages - UCC Expectation Damages

work through this basic formula to determine any expectation damages question. 1. Is there a buyer breach? 2. Cost the K states 3. difference of cost EX: Buyer breach. Mickey contracts with Pabst to buy a keg of beer for $100. Mickey repudiates the contract, and Pabst sells the keg to a liquor store for $80. What are Pabst's expectation damages? $100 - $80 = $20

If the contract states that rights are not assignable

you must determine whether the contract prohibits assignments or invalidates assignments. o The contract prohibits assignments—the assigning party has breached when he makes the assignment, but the third party can still recover from the guarantor. The power to assign persists, even if the right to assign does not. o The contract invalidates assignments—the third party cannot recover because there is no power or right to assign.

Performance Warranties | 1. Express Warranty

· A promise that affirms or describes the goods and is part of the basis of the bargain is an express warranty unless it is merely the seller's opinion. · The use of a sample or model creates an express warranty that the goods sold will be like the sample.

Rules about restraints

· An absolute restraint on alienation is void; · A partial restraint is valid if it is for a limited time and a reasonable purpose; · A restriction on the use of property is generally permissible (e.g., covenants).

Easement Termination - Merger

· An easement is terminated if the owner of the easement acquires fee title to the underlying estate. · The easement merges into the title.

A consumer buyer is a person who

· Buys consumer goods for value; · For his own personal, family, or household use; · From a consumer seller; and · Without knowledge of the security interest.

A BOCB is a person who:

· Buys goods (not including farm products); · In the ordinary course of business; · From a merchant who is in the business of selling goods of that kind; · In good faith; and · Without knowledge that the sale violates the rights of another in the same goods.

Value may be given:

· By providing consideration sufficient to support a simple contract; · By extending credit, either immediately or under a binding commitment to do so; · By, as a buyer, accepting delivery under a preexisting contract, thereby converting a contingent obligation into a fixed obligation; or · In satisfaction of, or as security for, part or all of a preexisting claim.

Performance Conditions | 1. Express Conditions

· Express conditions are created by language in the contract. · Express conditions must be strictly satisfy, unless the condition is somehow excused.

Mortgage Big Picture

· Lender lends money (with interest) to someone who wants to purchase a home; · Lender takes an interest in the home as security; · When the loan is paid, everybody benefits; · If payments are not made, the lender will foreclose on its interest and force a sale of the home to satisfy the debt.

Cons. Sub | B. Quasi-Contract "RUB that D back for nothing"

· P confers a benefit on a defendant · P has a reasonable expectation of compensation, · D not paying P back = unjust **When you see a situation that does not satisfy the normal requirements for a contract but still strikes you as unfair, ask whether quasi-contract might apply.**

Collateral

· Property subject to a security interest The characterization of collateral can affect the · validity of a security interest, · How it can be perfected, and · rights of a third party in the collateral, such as a buyer of collateral.

A consumer buyer special problem

· Remember, a PMSI gives lenders a special security interest in goods that have been purchased with funds borrowed from them or purchased on credit from them. · A PMSI in consumer goods is automatically perfected upon attachment. Perfection through filing a financial statement is not required, but a party with a PMSI may still elect to file a financial statement. · If a financing statement for a PMSI in consumer goods is not filed, and the consumer buyer does not know of the PMSI, then he will take free of the security interest. · If the party holding the PMSI in consumer goods does in fact file, then his security interest will be good even against a consumer buyer. Secured parties with a PMSI in consumer goods should file a financial statement, to protect their interest against consumer buyers.

Equal Protection (Race, Ethnicity, and National Origin) General Considerations - Two Due Process Clauses

• 5th Amendment applies to the federal government • 14th Amendment applies to state and localities.

SOF | Property

• All contracts involving real property are not automatically in SOF world; only those transferring an interest in the property. • Leases of less than one year are usually not in SOF world.

PMSI (Purchase Money Security Interest) in consumer good

· Remember, a PMSI gives lenders a special security interest in goods that have been purchased with funds borrowed from them or purchased on credit from them. · A PMSI in consumer goods is automatically perfected upon attachment. A secured party does not need to file a financing statement or have possession to have a perfected PMSI in consumer goods. A PMSI in other types of goods (e.g., inventory, equipment) or in automobiles is not automatically perfected.

Performance Warranties | 2. Implied Warranty of Merchantability

· This warranty is triggered only when the seller is a merchant (what they normally sell - not a "one-off) dealing in the goods at issue. · Warrants that the goods are fit for Ordinary commercial purpose Can a merchant disclaim this warranty? Yes, if it is very clearly done. 1. Look for VERY CONSPICUOUS language; and 2. Look for the term "merchantability." **Unless the circumstances indicate otherwise, the warranty can be disclaimed by use of "as is," "with all faults," or similar language that makes plain that there is no implied warranty. The disclaimer may be oral, but it must use the term "merchantability" and must be conspicuous if in writing.**

Secured Transaction

· Uniform Commercial Code (UCC) Article 9 · a loan or purchase that is secured by collateral. · The relationship typically involves two parties, a debtor and a creditor. · The debtor gives the creditor a security interest in the debtor's specific property (collateral) to assure that the debtor will perform (repay the loan, pay the purchase price).

Default | Security Agreement Covering Fixtures

· When a security agreement covers fixtures, a secured party may proceed as to the fixtures in accord with the rights and remedies with respect to the real property. · When a secured party's security interest has priority over owners and individuals who encumber real property, that secured party may remove the fixture from the real property. With respect to an owner or encumbrancer who is not the debtor, the secured party is liable for the cost of repairing any physical object damaged by the removal but not for any reduction in the value of the real property due to the removal

Who has priority? Construction Mortgage

—A construction mortgage (i.e., a mortgage that secures an obligation incurred for the construction of an improvement on land, including the cost of acquiring the land, and that indicates it is a construction mortgage in the real property records) has priority over a subsequent security interest in a fixture, including a PMSI in a fixture. The construction mortgage must be recorded before the goods become fixtures, and it covers only goods that become fixtures before completion of the construction

Takings - Physical Occupation

—If the government physically occupies a private owner's property, then a taking has occurred and it owes just compensation. • If the government physically occupies only a tiny portion of your property, it is still a taking.

Multi-Party Litigation | Intervention Types of intervention - Permissive intervention

—May be allowed whenever there is a common question of law OR fact between the intervenor's claim and the main claim (very relaxed standard). • Must ask the court's permission—matter of court's sound discretion

Transferees

—Transferees of the collateral are persons who obtain full title to the goods as a result of a transfer of the collateral from the debtor

"IT" Trespass to Land Rightful Plaintiff

—anyone in possession can bring an action, not just the owner.

Products Liability - Strict Products Liability Defenses | Assumption of the risk

—if the risk is one that the plaintiff knew about and voluntarily chose, then the plaintiff will not be allowed to recover.

Negligence: Breach of Duty — Res Ipsa Loquitur Mordern Trends Medical malpractice

—in cases in which medical personnel acted negligently to harm a patient, a small number of jurisdictions shift the burden by holding ALL defendants jointly and severally liable unless they can exonerate themselves.

"IT" Battery - Consent Defense

—there is no battery if there is express or implied consent.

Notice and Service of Process Personal service

—used to assert in personam jurisdiction • Should also be used for in rem and quasi-in-rem actions when the identity of an interested party is known • Service by publication is only appropriate for in rem actions when that is the best that the serving party can do.

Negligence - California Way Standard of Care

• (Minority and Third Restatement approach) • Some states—reasonable standard of care under all the circumstances for all entrants • The fact that the land entrant is trespassing is one fact that the jury may consider in deciding whether the land possessor has exercised reasonable care • The Third Restatement § 52—reasonable care under the circumstances, except "flagrant trespassers" • The only duty to flagrant trespassers is to not act in an intentional, willful, or wanton manner to cause physical harm

Mandatory Disclosures Three Stages Pretrial Disclosures

• 30 days before trial • List of witnesses and exhibits • Any objections must be made within 14 days after disclosure or they are waived unless excused by the court for good cause.

Right to Jury Trial

• 7th Amendment right to trial by jury depends on the division between law (juries) and equity (no juries) as of 1791. • Remember: there is no right to jury trial for equity issues such as injunctions, specific performance or Admiralty issues. • Claims for damages are the classic remedy at law and trigger the right to jury trial • When legal and equity issues overlap in one lawsuit, try the legal issues first, no matter the order in which they arose.

Implied Reciprocal Servitude - To prove there is a common plan, look for:

• A (recorded) map of the community showing the common scheme; • Marketing or ad. of the community; • Oral or written mention that the lots are burdened by common restriction.

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases - compulsory counterclaim

• A compulsory counterclaim is one that arises out of the same transaction or occurrence as the opposing party's claim. • Compulsory counterclaims are usually brought by defendants, so they can usually come in without checking it against the AIC requirement. However, watch out for compulsory counterclaims brought by a plaintiff, which would run into those exclusions.

Involuntary Manslaughter

• A criminally negligent killing or killing of someone while committing a crime other than those covered by felony murder (i.e., misdemeanor manslaughter) • A defendant who engages in criminally negligent conduct and causes a death is guilty of involuntary manslaughter (e.g., traffic deaths).

Merger

• A defendant can be convicted of more than one crime arising out of the same act. • A defendant cannot be convicted of two crimes when the two crimes merge into one. • Two categories of merger: 1) Lesser-included Offenses; and 2) The merger of an Inchoate and Completed Offenses

Exceptions to the Warrant Requirement Consent

• A defendant can consent to a search. • Consent does not require the officer to warning the subject of his right to refuse. (e.g., "Mind if I look in that ....?") • Consent can involve outright deception.

Embezzlement: A Variation of Larceny

• A defendant starts out having the victim's consent to have the property but commits embezzlement by coverting the property to his own use.

The Confrontation Clause - Bruton Doctrine

• A defendant's own statements are always always against him. This is true even if the defendant does not testify at trial. • If there are co-defendants, a non-testifying co-defendant's statements are inadmissible against the other defendant.

Delegation

• A delegation occurs when a party to a contract "outsources" her duties under the contract. • This is generally acceptable, as long as the contract does not prohibit delegation and as long as the other party does not have some special interest in having a specific individual perform.

Claim Preclusion (Res Judicata)

• A final judgment on the merits of a claim bars re-litigation of that claim by the same parties or their successors in interest (those in privity with the parties). • Precludes re-litigation of every claim that was raised or should have been raised in the first suit.

Issue Preclusion (Collateral Estoppel) Party to be Precluded Must Have Been a Party to the First Suit

• A is trying to prevent B from reusing a statement - thus, arguing to preclude someone from using it.

Competence Juror as Witness

• A juror may not testify as a witness in a trial in front of the jury in which he sits. • After the verdict or an indictment (grand jury), the parties might be tempted to ask the jurors to testify about what happened in the jury room in the context of a motion for a new trial or on appeal.

Searches Incident to Arrest

• A lawful arrest permits the arresting officers to make a contemporaneous search of the person arrested and the immediate surrounding area to: 1) Protect officers from weapons or other dangers; and 2) Any evidence discovered during a search incident to a lawful arrest can be used against the person arrested.

Negligence elements (DUTY OF CARE)

• A legal obligation to act a certain way (as opposed to a social or moral one); two aspects: (1) Is there a duty or not? (like a light switch, on or off) (2) What is the nature of that duty—what is the standard of care? • In most cases, the standard is reasonable care. • There are some exceptional standards, such as utmost care for common carriers

Intermediate title theory state

• A minority of jurisdictions modify the title theory. • The mortgagor retains title until default, at which point the lender can take possession.

After-acquired property

• A mortgagor/borrower may grant a mortgagee/lender rights to property that the mortgagor/borrower acquires in the future. • The mortgage must clearly state that it applies to after-acquired property. • Upon foreclosure, an interest in after-acquired property is junior to a purchase-money mortgage.

Renewed Motion for Judgment as a Matter of Law (formerly J.N.O.V.)

• A motion for JMOL made at the close of all the evidence and denied by the court may be renewed within 28 days of the jury returning a verdict. • Standard is the same: The evidence cannot support the jury's verdict and the moving party is therefore entitled to judgment as a matter of law. • Prior motion is required: It is a condition precedent to a post-verdict motion that the motion for JMOL had been made at the close of all evidence.

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Political Questions

• A non-justiciable question when it is inappropriate for judicial resolution - The issue is committed to another branch of government for decision; OR - There are no manageable standards for adjudication.

Subject-Matter Jurisdiction: Removal Jurisdiction Removal Procedures

• A notice of removal is filed in the federal court, with a copy to the state court. • When the removal notice is filed, the state court's jurisdiction removed instantly and automatically

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases - Permissive counterclaim

• A permissive counterclaim is one that does NOT arise out of the same transaction or occurrence as the main claim. • does not satisfy supplement because it is not out of the same transaction or occurence • Can only be heard by a federal diversity court ONLY if it independently satisfies diversity jurisdiction (i.e., complete diversity and $75,000+)

Manslaughter

• All unlawful killings of another human being that are not firstdegree murder or common law murder • Two types: voluntary and involuntary

"IT" Battery - Offensive Harmful or Offensive Contact

• A person of ordinary sensibilities would find the contact offensive. • Victim need not be conscious of the touching to be offensive. • If the victim is hyper sensitive, and the defendant knows that about the victim, the defendant may still be liable

What is not hearsay - Certain Prior Statements of Testifying Witnesses Prior Statements of Identification

• A previous out-of-court identification of a person (after perceiving that person) is admissible. • Classic example: lineup at a police station • Remember: requires that the declarant testify as a witness and be subject to cross-examination - Does not apply if the witness died (or is otherwise unavailable at trial)

Tricks b. Illusory promise

• A promisor must clearly commit to the deal or there is no consideration (i.e., there must be a way for the promisor to breach). • Look for situations where one side is not really committing to the deal under the objective test. • Satisfaction contracts NOT illusory; they are real contracts with consideration. • Output and requirements contracts NOT illusory promises. • There is a way for a party to breach: o By requiring the product and purchasing from others; or o By making the product and selling to others.

Defamatory "Of or Concerning" the Plaintiff

• A reasonable person must believe that the defamatory language referred to this particular plaintiff. • Statements referring to a group—a member of the group can bring an action only if the group is so small or the context is such that the matter can reasonable be understood to refer to that member.

Mortgage modifications

• A senior mortgagee who enters into an agreement with the mortgagor/landowner to modify the mortgage by making it more burdensome subordinates its interest, but only as to the modification. • The original mortgage will otherwise remain superior. • Likewise, if a senior mortgagee releases a mortgage and, at the same time, replaces it with a new mortgage, the new mortgage retains the same priority as the former mortgage, except to the extent a change is materially prejudicial to a junior mortgage holder.

Settlement Offers or Negotiations

• A settlement offer made by any party is not admissible to prove the validity or the amount of a disputed claim. - This rule applies to settlement offers AND conduct or statements made during settlement negotiations. • Cannot be used as a prior inconsistent statement to impeach • Except—may be admissible if it serves another purpose, such as proving bias • Cannot be unilaterally waived by either party

Requirements of a Complaint

• A short and plain statement of the court's claim; • A short and plain statement showing the claimant is entitled to relief; and • A claim for the relief sought by the pleader. 1. Claim for Relief 2. Notice Pleading

Common Non-Hearsay Uses - State of Mind

• A statement offered as circumstantial evidence of the declarant's mental state • Circumstantial evidence can be used to show knowledge Stop to determine whether the statement meets the definition of hearsay: an out-of-court statement being used to prove the truth of the matter asserted.

Contents of a Deed

• A valid deed must identify the parties (i.e., grantor and grantee) and it must be signed by the grantor, per the Statute of Frauds. • A valid deed must include words of transfer. o A granting clause can include any words that evidence a present intent to transfer. • A valid deed must include a sufficient present of the property.

Exclusion of Witnesses - Some witnesses may not be excluded

• A witness who is essential to the presentation of the case; • A person, such as a crime victim, who is permitted by state rule to remain in the courtroom; or • A party in the case

Claim Preclusion (Res Judicata) Re-litigation of a Sufficiently Identical Claim or Cause of Action

• ALL legal theories to recover for harm arising out of a single transaction or occurrence count same claim for purposes of claim preclusion. • Unless state law provides otherwise, if both contract and tort claims seek redress for the same harm, they are the not the same claim. • Also bars claims that could have been brought in the first case but were not.

Multi-Party Litigation | Compulsory Joinder of Parties Necessary Party

• Absent that party, complete relief cannot be accorded to the existing parties; • The necessary party has an interest in the subject of the litigation which will be impeded by this litigation (some risk of prejudice to Nina); or • There is a substantial risk of double or inconsistent liability imposed on others if the party is not brought into the case. • Worried about prejudice to the existing parties

Interbranch Relations - Immunities The President

• Absolute immunity from liability for official acts (broadly construed) • No immunity for acts done prior taking office • Executive privilege not to reveal confidential communications with presidential advisers, but that privilege can be outweighed by a demonstration of specific need in a criminal prosecution

Hearsay Exception - Declarant Unavailable Exceptions Dying Declarations

• Admissible in a murder case or a homicide case • The declarant does not actually have to die • Remember, the declarant must be unavailable in some way

Land Sale K's Merger

• After closing, obligations contained in the contract are merged into the deed. • If there was something important in the contract that is not in the deed, the cause of action is lost because the deed controls after closing.

Warrantless administrative searches—used to ensure compliance with various administrative regulations; examples:

• Airplane boarding areas • International borders • Highly regulated industries (liquor stores, gun shops, etc.) • Searches of students in public schools • Special needs searches; e.g., drug testing of railroad employees after an accident • Roadblocks for drunk driving or seeking information

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue - Injury

• Almost anything can be injury (past or future), especially if Congress says so. • Must be concrete (not abstract), but need not be economic (e.g., if your freedom of movement or enjoyment of public space is impaired, that constitutes injury). • Mere ideological objection is not injury. • An organization has standing if members have standing.

Conspiracy - Common law conspiracy requires

• An agreement; • Between two or more people; • To commit an unlawful act.

Amendments to the Pleadings - Doctrine of Relation Back Rules to remember

• An amendment relates back to the date of the original filing IF it concerns the same conduct, transaction, or occurrence as the original pleading. • The key concept here is notice; it cannot have the effect of surprising the other party.

Implied Easement by Necessity

• An easement by necessity is created only when property is virtually useless (e.g., when the property is landlocked; there is no road or access without crossing another's land). • Conditions that must be met: 1. Common ownership: 2. Necessity at severance:

Creating an Easement - Express Easement

• An express easement is subject to the Statute of Frauds. Thus, it must be in writing. • It can be created by a grant. • It can also be created by reservation. An easement by reservation is created when a grantor conveys land but reserves an easement right in the land for the grantor's use and benefit.

Consequences of Fifth Amendment Violations Involuntarily Obtained Statements

• An involuntarily obtained statement is never admissible against a defendant. • Whether to overturn a conviction depends on the harmless error standard. • Evidence obtained as the result of an involuntary statement (e.g., "Tell us where the body is buried" while a suspect is at gunpoint) is fruit of the poisonous tree and is presumptively inadmissible.

Types of Seizures Warrantless arrests

• An officer can arrest an individual without a warrant in a public place, either for a crime committed in the officer's presence or based on probable cause to believe the individual committed a felont. • If the crime was not committed in the officer's presence, the officer can make an arrest only for a felony. • An arrest that is illegal does not prevent prosecution for the crime. But, it may result in the exclusion of evidence discovered during the arrest.

Types of Seizures Stop and Frisk/Terry Stops

• An officer stops an individual when the officer has a reasonable suspicion, based on articuable facts, to believe the suspect is or is about to be engaged in criminal behavior. • An officer's reasonable mistake of law can give rise to reasonable suspicion

B. Conditions—The "C"

• Another way to shift risk by stating that one party's contractual obligation will only kick in if some future event takes place • Conditions can be express or implied. • The most important implied condition is the "constructive condition of exchange." 1. Express Conditions 2. Satisfaction conditions 3. Waiver

Specific In Personam Jurisdiction - Common Bases for Specific In Personam Jurisdiction

• Any act or omission in the state causing injury to a person or property here or elsewhere (e.g., driving car into another state) • An act or omission outside the state causing injury to a person or property here the state, provided that the defendant conducted activities here or introduced goods into the flow of commerce (probably most important) • Any claim arising out of a contract to perform services in the state or to pay someone in the state to perform services elsewhere, or out of the actual performance of such services • Any claim arising out of a contract to shipping to or from the state, or arising out of the shipment of such goods • Any claim regarding local property • Any action against an officer or director of a domestic corporation for acts taken in that capacity • Any contract for insurance where the plaintiff was a resident of the state when the claim arose, or the event giving rise to the claim occurred in the state. • Almost everything is covered by a state's long-arm statute, so long as the claim arises out of the transaction involving that state (specific jurisdiction).

Appeals - Interlocutory Orders Interlocutory orders immediately appealable as of right:

• Any order granting or modifying an injunction • Unlike injunctions, TROs are ordinarily not appealable, unless an order is styled as a TRO, but is operating like an injunction (i.e., extended well beyond 14 days). • Any order that changes or affects possession of property

DECLARANT'S AVAILABILITY IMMATERIAL Business Records

• Any record or writing of an act or event made in the course of a regular conducted business activity • Medical records are often included as business records (only to the extent that entries relate to diagnosis or treatment). • Records prepared in anticipation of litigation are not admissible as business records. • Courts have the discretion to exclude business records if the source of information or the method or circumstances indicate a lack of trustworthiness.

Products Liability - Strict Products Liability Defendants

• Anyone who sells the product when it is defective is potentially strictly liable. • Must be in the chain of distribution and in the business of selling • Casual sellers—not strictly liable, but may be liable for negligence • The seller may seek indemnification from another party (e.g., the manufacturer)

Appeals - Interlocutory Orders Standards of Review | Questions of law

• Appellate review is De Novo • Did the trial court make an error? • Was the error prejudicial?

When Does the Sixth Amendment Right to Counsel Apply?

• Applies to all felony prosecutions and to any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed. • Applies to all critical stages of the prosecution

Mandatory Disclosures Scope of Discovery

• Applies to all six discovery devices • General rule is relevant. - You can discover anything that might be admissible at trial OR that might lead something that might be admissible at trial. • Key point: The scope of discovery is NOT limited to admissible evidence.

Types of Seizures Warrants

• Authorizes an officer to arrest a particular person • An arrest warrant is issued by a neutral and detached magistrate based on a finding of probable cause to believe that the individual has committed a particular crime. • Warrant must name the person and identify the offense

Interbranch Relations - Congressional Limits on the Executive Impeachment

• Applies to executive officers (e.g., President, Vice President, cabinet officers, federal judges) • An accusation passed by the House of Representatives requiring a majority vote. • Once impeached, the person is tried in the Senate. • Conviction requires a two-thirds vote of the Senate. • Impeachment and conviction lead to removal from office and disqualification from holding future office. No other penalty applies.

Interrogations - 5th Amendment Scope of the Privilege

• Applies to natural persons, not corporations or unions • Applies to testimonial evidence, not physical evidence • Applies to testimony that would be a link in the chain leading to prosecution or conviction As long as there is reason to believe the testimony might lead to future criminal prosecution, an individual is entitled to invoke the Fifth Amendment. • If someone is given immunity from prosecution for their statements, they cannot continue to refuse to answer.

Negligence Defenses: Assumption of the Risk

• Applies when a party knowingly and willingly embraces a risk for some purpose of his own • Analogous to the defense of consent in intentional torts • Can be express or implied

Motion for Judgment on the Pleadings

• Applies when the pleadings agree entirely on the facts and only the law is in dispute • If facts in affidavits or discovery documents must be considered, must file for summary judgment instead of judgment on the pleadings

Regulation of the Time, Place, or Manner of Expression (Content-neutral)

• Apply in a public forum • A traditional public forum is a place historically reserved for speech activities (e.g., streets, parks, and public sidewalks around public buildings (but not airports)). • A dedicated public forum is a place the government has opened for free speech activities (e.g., a civic auditorium that rents to the public).

Regulation of the Content of Expression - Prior Restraints

• Are especially disfavored and will be struck down even when other forms of regulation might be upheld. • Injunctions against speech are almost impossible to ge

"IT" False Imprisonment - Confined Within Bounded Area

• Area can be large • Area need not be statutory

Excuses | Novation

• Arises when BOTH parties agree that a substitute person will take over the contractual obligations. o Can one side decide to create a novation by asking someone else to do the work? no, this is called a "delegation," (discussed later). • If there is a valid novation, then the original promisor will be excused from performance.

Presentation of Evidence - Mode and Presentation of Evidence Refreshing a Witness's Recollection

• Arises when a witness is having trouble remembering • Allowed to help the witness remember by showing them a document (or something else), typically a person's notes • The witness looks at the notes, remembers, puts the notes aside, and proceeds to testify from present memory—called present recollection refreshed • The document does not become evidence and the witness takes the document read from it and turn it over • The opposing party is permitted to see and inspect the document, and even show it to the jury

UCC § 2-207—Confirming Memo

• Arises when the parties have a contract (usually by verbal agreement) and one party sends a confirming memo with additional terms Exam Tip 2: If you see this fact pattern (early agreement + written confirmation with new terms), work through the same steps as above for § 2- 207(2). But recognize that the new terms will very rarely come in. Take steps of the "Three Nos" in additional terms

Contrast with Past Recollection Recorded (Exception to Hearsay Rule)

• Arises when the witness still cannot remember after trying to refresh their memory • Permits the witness to read the notes into evidence under a hearsay exception • Requires that the witness cannot remember, the record was made when it was fresh in their memory, and the record accurately reflects their memory

Joinder of Claims

• As between the same plaintiff and the same defendant, all claims may be joined (need not be related) • Diversity case: Plaintiff can aggregate all claims against the same defendant to exceed the jurisdictional minimum • Federal question case: If diversity is lacking for additional state-law claims, additional state-law claims can be joined only if they are covered by Supplemental jurisdiction (i.e., arise from the same transaction or occurrence as the original claim).

Larceny is a theft crime; which means:

• As long as the defendant thinks it's his property—however unreasonably—he is not guilty of larceny.

Motion for a More Definite Statement

• Asks that a pleading be made more specific • Judges usually disfavor this motion.

Assignment v. Delgation

• Assignment—the transfer of rights under a contract • Delegation—the transfer of duties under a contract

Principals, Accomplices, Aiders, and Abettors Children

• At common law, children under the age of 7 were never capable of committing a crime. • Children ages 7 to 14 were rebuttably presumed to be incapable of committing crimes. • Children at least 14 years old could be charged as adults. On the MBE, children are more likely to be the victims of crime than the perpetrators.

Negligence: Special Rules of Liability Pure Emotional Harm—Negligent Infliction of Emotional Distress (NIED)

• At common law, plaintiffs could not recover for NIED absent a physical injury. • Now, plaintiffs can recover for NIED in specific circumstances: 1. Zone of danger 2. Bystander recovery 3. Special relationship 4. Physical manifestation

Hearsay Exception - Declarant Unavailable Exceptions Statements Against Interest

• At the time it was made, the statement was against the declarant's pecuniary, proprietary, civil, or penal interest, such that a reasonable person would not have made the statement unless it were true • Exonerating statements: - Statements that would subject a declarant to criminal liability are not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. - Do not confuse with party admissions. There is no "against interest" requirement in the party admissions doctrine and the statement against interest exception is not limited to parties.

Character for Truthfulness or Untruthfulness Character Witness Testimony (FRE 608(a))

• Can introduce character witnesses who will testify that the target witness is dishonest • May be attacked through opinion or reputation, not prior specific incidents

Deed CL Recording Rule

• Baseline rule • A deed does not have to be recorded to be valid! • The baseline for recording problems is the common-law rule. It follows the "first in time, first in right" principle (i.e., under the common-law rule, the first grantee to receive a deed wins). ** Every state has a recording statute that modifies the common-law rule to give priority to certain deeds when there are competing claims to title. In the absence of a recording statute, the common-law rule controls. **

Mandatory Disclosures Scope of Discovery Exceptions to Discovery | Work-product rule

• Basic idea: Preparation for litigation by one party cannot be discovered by the other. • The attorney work product rule protects: 1. Document and things (not underlying information); 2. Prepared in anticipation of litigation or for trial; • Documents prepared before the cause of action arose (e.g., ordinary business records) are NOT protected by the work product rule. 3. By or for another party or the party's representation.

Land Sale K's Delays

• Basic rule: Unless the contract or parties notify, time is NOT of the essence. • Why does this matter? If time is not of the essence, the failure to close on the date set for close may be a breach of the contract, but is not grounds for rescission of the contract. • Specific performance is still available.

Pleading SMJ

• Basis for federal SMJ must be affirmatively pleaded in every case. • If challenged, it must be proved that there is a basis for SMJ.

Multiple Hearsay

• Be aware of hearsay within hearsay (double or multiple hearsay) • If there are multiple levels of hearsay, you will need an exception or exclusion for each level of hearsay for the statement to be admissible.

Presentation of Evidence - Mode and Presentation of Evidence Trial Process

• Begins with the plaintiff (civil case) or prosecution (criminal case) introducing its case first, then the defendant will present its case • Order of presentation of evidence and witnesses is within the court's discretion to control • Court may call and question witnesses. - All parties can cross-examine those witnesses. - Every party should have an opportunity to object outside the hearing of the jury.

Negligence: Damages Collateral-Source Rule Traditional

• Benefits or payments to the plaintiff from outside sources are not credited against the liability of any tortfeasor • Evidence of such payments is not admissible at trial • Typical insurance plans include a provision that any amounts recovered by the plaintiff would first reimburse the insurance company for payments made to cover the plaintiff's expenses.

Types of Seizures Stop and Frisk/Terry Stops Burden Hierarchy

• Beyond a reasonable doubt → conviction • Probable cause ("more likely than not") → arrest • Reasonable suspicion → stop

The Exclusionary Rule 5½ Exceptions - Good faith

• Biggest of the exceptions to the exclusionary rule • It applies to officers who rely on either: a) An existing law that was later declared unconstitutional; or b) A warrant that, while facially valid, is later found to be defective. • If officers are acting in good faith reliance, they are entitled to use the evidence that was obtained.

Claim Preclusion (Res Judicata) Re-litigation between the Same Parties

• Both parties must have been parties to the first action or successors in interest to the original parties. • A successor in interest stands in the shoes of the original party and is treated, for preclusion purposes, as the same party.

Erie Doctrine | Federal Common Law Examples where federal common law applies

• Boundary disputes between states • Claim preclusion • Borrowing of state rule

Burglary CL

• Breaking and • Entering • The property • Of another • At night • With the specific intent to commit a felony once inside

Burglary Modern Law

• Breaking and • Entering • The property • Of another • With the specific intent to commit a felony inside

Negligence: Special Rules of Liability Wrongful death

• Brought by the decedent's spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent's death • Can include loss of economic support and loss of consortium

Tangible Evidence | Documentary Evidence—Ways to Authenticate

• By witness testimony of the parties • Eyewitness testimony combined with distinctive features

Discovery Devices | Six Discovery Devices Discovery and Inspection of Documents and Land

• Called a request to produce and permit inspection • Only against property controlled by parties • The thing to be produced and inspected must be described with particularlity. • Response is due within 30 days

Tangible Evidence | Oral Statements Telephone conversations

• Caller recognized the speaker's voice • The speaker knew facts that only a particular person would know • The caller dialed the number believed to be the speaker's and the speaker identified themselves upon answering the phone • The caller dialed a business and spoke with a person who answered questions about business regularly conducted over the phone

Cons. Sub | A. Promissory Estoppel (or Reliance) "RIP bitch"

• Can arise when one party makes a promise, and the other party relies on that promise to take some action • Three key elements for a claim under reliance: 1) reasonably relies on promise; 2) promisee takes detrimental action in reliance based on promise; and 3) Injustice can only be avoided by enforcement of the promise.

Prior Inconsistent Statements

• Can be done with any kind of statement • Can be proved by extrinsic evidence, but only if the witness is given the opportunity to explain or deny the evidence

Motion to Strike

• Can be used to delete from a pleading scandalous or prejudicial matters that are NOT relevant to the case at hand • Also used by the plaintiff to strike a legally invalid defense

What is not hearsay - Certain Prior Statements of Testifying Witnesses Prior consistent Statements

• Can be used to rehabilitate a witness when accused of recent fabrication or improper motive • Can also be used as proof of the truth of the matter asserted (substantive evidence)

The War and Defense Powers

• Congress has the power to declare war and the power to maintain the Army and Navy. • Congress has the power to provide for military discipline of U.S. military personnel. • Congress can provide for military trial of enemy combatants and enemy civilians. • Congress cannot provide for military trial of U.S. citizens who are civilians.

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases - Cross-claims

• Claim by a co-party (e.g., a plaintiff against another plaintiff) • Relatedness Requirement: Must arise out of the transaction or occurence that is the subject matter of the action or of a counterclaim. • Cross-claims by defendants will usually (but not always) qualify for supplemental jurisdiction; you still need to apply the relatedness test. • Must look out for P, because supplement usually does not apply to P

Joinder Counterclaims

• Claim by an opposing party, usually by the defendant against the plaintiff • Claim by an opposing party, usually by the defendant against the plaintiff • Types of counterclaims: compulsory and permissive

Negligence: Special Rules of Liability Wrongful birth

• Claim by parents for defendant's negligent failure to properly perform a contraceptive procedure or diagnose a congenital defect • Many states do permit recovery for the medical expenses of labor as well as for pain and suffering. • In the case of a child with a disability, may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, may recover for emotional distress as well

Motion to Dismiss

• Claim of no personal jurisdiction or a claim of improper venue must be made at the earliest opportunity (either a pre-answer motion to dismiss or the answer). • Lack of subject-matter jurisdiction can be waived; can be raised by any party at any time, including for the first time on appeal or by the court itself. • Most claims (including lack of PJ and venue) are waived if NOT raised by defendant before objection on the merits.

Preclusion consists of two distinct doctrines

• Claim preclusion (res judicata) • Issue preclusion (collateral estoppel)

Special Rules for Service of Process - Non-resident motorists

• Claims arising out of in-state accidents • Generally, service can be made on a state official who forwards a copy to the out-ofstate defendant. • Note that this is a state law issue, not federal.

Cross-claims

• Claims asserted against a co-party. -- Plaintiff v. co-plaintiff, defendant v. co-defendant • Must arise out of the same transaction or occurrence as the original claim or a counter-claim • Cross-claims will often fall under supplemental jurisdiction, but not always. Remember to analyze whether the cross-claim satisfies federal SMJ on their own or through supplemental jurisdiction. • Cross-claims are never compulsory.

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases | Claim my P's are:

• Claims by plaintiffs against persons made party under Rules 14, 19, 20, or 24; **Joinder Rule not allowed** • Claims by parties seeking to intervene as plaintiffs under Rule 24; or • Claims by parties proposed to be joined as plaintiffs under Rule 19. • If such claims are to be part of a diversity case, they must independently satisfy the complete diversity and AIC requirements.

The Parol Evidence Rule Exceptions

• Clarify an ambiguity; • Prove a custom of trade or course of dealing; • Show fraud, duress, mistake, or illegal purpose; or • Show whether consideration has or has not been paid

Attorney-Client Privilege Condifential

• Client must have made reasonable efforts to keep the communication confidential • Communications made in the presence of unnecessary 3rd parties will not be privileged. • Presence of persons necessary to the communication (e.g., a translator or the lawyer's assistant or agent) will not undercut the privilege • An unknown secret eavesdropper will not destroy the privilege - have to take precautions

Remedies | 2. Anticipatory Repudiation

• Closely related to the CCE, but it deals with a slightly different question: o What are your remedies when the other side says they are not going to perform on the contract (repudiation) before performance is due?

The Powers of the President—Foreign Affairs

• Commander in Chief: The President has control over military decisions, although Congress has exclusive power to declare war - Congress can cut off funding to military actions. • Treaties and Executive Agreements

State Taxation of Interstate Commerce - Ad Valorem (value-based) Property Taxes Distinguish between two kinds of personal property because they are taxed differently:

• Commodities • Instrumentalities

Bribery

• Common law: Corrupt payment of something of value for purposes of influencing an official in the discharge of his official duties • Modern law: Allows a bribery charge even if the person being bribed is not a public official • Offering a bribe and receiving a bribe are both felonies. • Recall that a person can be convicted of bribery even if the person could not "be bribed."

Kidnapping Malicious Burning Elements - Dwelling

• Common law—had to be a dwelling, not another structure • Modern statutes—burning down a commercial building is arson

Kidnapping Malicious Burning Elements - Another Person

• Common law—you could not torch your own house. • Modern statutes—burning your own home is arson.

Products Liability - Strict Products Liability Defenses

• Comparative fault • Contributory negligence • Assumption of the risk • Product misuse, modification, or alteration • Substantial change in the product • Compliance with governmental standards • "State of the art" defense • Disclaimers, limitations, and waivers

Products Liability - Strict Products Liability Defenses | Compliance with governmental standards

• Compliance with safety standards is admissible that the product is not defective, but it is not dispositive evidence. • Exception: federal preemption—when Congress has preempted regulation in a particular area (expressly by statute or impliedly by regulating the field)

Interbranch Relations - Delegation of Powers

• Congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power. • Not a demanding test—almost all delegations of legislative powers are upheld • Constrained recently: Major questions doctrine: special rule dealing with administrative decisions of vast economic and political significance. Congress must clearly delegated that authority to the agency.

Permissive Counterclaims

• Counterclaim that does not arise out of the same transaction or occurrence • May be pleaded now OR raised later • Requires an independent jurisdictional basis: Must be a federal claim OR there must be complete diversity of citizenship with $75,000+ in issue. • Statute of Limitations: A permissive counterclaim must be timely as of the date it is filed or it's time-barred.

Regulation of Unprotected and Less Protected Expression Obscenity - Courts have recently begun to distinguish legally obscene speech from pornography.

• Courts have recently begun to distinguish legally obscene speech from pornography. Merely establishing that speech constitutes pornography is generally insufficient to establish that the speech is obscene.

Cross-examination

• Courts limit the scope of cross-examination to the subject of direct examination. • Courts are permitted to allow broader inquiry. • Allowed to use leading questions

Negligence: Causation Proximate Cause - Intervening vs. Superseding Causes

• Courts used to distinguish between "intervening" causes, which do not break the chain of causation, and "superseding" causes, which do. Some courts still make this distinction. • The real issue is whether the injury is within the scope of what made the conduct negligent in the first place. • Third-party criminal acts may or may not break the chain of causation.

Intoxication

• Covers alcohol, drugs, and medications 1. Involuntary intoxication 2. Voluntary intoxication

LL & Tenant | Lease

• Creates both a K interest and a property interest • Landlord-tenant law is a mix of contract law and property law.

Character for Truthfulness or Untruthfulness Criminal Convictions (FRE 609)

• Crimes involving dishonest and false statement • Convicted of felonies

Character for Truthfulness or Untruthfulness Criminal Convictions (FRE 609) - Convicted of felonies

• Crimes punishable by 1 or more than years in prison • Court will allow impeachment with the prior felony conviction unless the risk of prejudice substantially outweighs the probative value • Criminal defendant—evidence of a prior felony conviction is admissible only if its probative value outweighs the prejudicial effect ("reverse 403")

The Confrontation Clause (Sixth Amendment) Face-to-Face Confrontation

• Criminal defendants have the right to be confronted with the witnesses against them. • Witnesses must testify in front of the accused; strong preference for face-to-face confrontation • Sometimes particular accommodations are necessary to protect the interest of a vulnerable witness, such as a child.

Duress

• Defendant claims he committed a crime only because he was threatened by a third party and reasonably believed that the only way to avoid death or injury to himself or others was to commit the crime. • In order to be a defense, there must be a threat of death or serious bodily harm. Mere injury, particularly injury to property, is not sufficient. • Defense for all crimes other than intentionally murder

Mens Rea—The Common Law States of Mind Specific Intent

• Defendant committed the actus reus and did it for the very purpose of causing the result that the law criminalizes

Interference with a Prospective Economic Advantage

• Defendant intentionally interferes with a prospective business relationship or benefit between the plaintiff and a third party, in the absence of a contract • The elements are the same as for intentional interference with a contract (without the contract), but the conduct must be wrongful.

Intentional Interference with a Contract Interference with performance other than inducing breach

• Defendant may be liable when he prevents a party from fulfilling its contractual obligations or substantially adds to the burden of performance • Defendant's conduct must exceed the bounds and free expression

Negligence: Breach of Duty — Compliance Defenses—Excuse

• Defendant may show that complying with the statute would be even more dangerous than violating the statute • Compliance was impossible or an emergency justified violation of the statute • Incapacity (physical disability), exercised reasonable care in trying to comply, vagueness

"IT" Conversion Intent

• Defendant must only intend to commit act that interferes. • Mistake of law or fact not a defense.

"IT" Trespass to Land Intent

• Defendant need only have the intent to enter the land or cause the physical invasion • Intent to commit a wrongful trespass is NOT required. • Mistake of fact is not a defense.

Defense Counsel - Proceeding Pro Se

• Defendants are entitled to waive the right to counsel and to represent themselves as long as they do it knowingly and voluntarily. • The competence standard for waiving counsel: are they competent enough to understand what they are doing • A defendant who proceeds pro se does not have a constitutional right to a "back-up" lawyer.

The Cruel and Unusual Punishment Clause - Capital Punishment The death penalty cannot be imposed on:

• Defendants who were under the age of 18 when they committed the crime • Defendants who suffer from cognitive impairment • Defendants who are insane at the time of execution

Principals

• Defendants whose act or omissions form the actus reus of the crime • Can be more than one principal to a particular crime • Ask: Who committed the actus reus that gives rise to the offense?

Attempt Defenses

• Defenses for specific-intent crimes can be used as a defense to attempt • Certain defenses like voluntary intoxication and unreasonable mistake of fact are available even if they wouldn't be available had the crime been completed.

Answer - Affirmative Defenses

• Defenses which, in fairness, require notice • Common affirmative defenses: assumption of risk, contributory negligence, fraud, duress, release, statute of frauds, and statutes of limitations (i.e., anything with a name).

Termination Without Trial | Summary Judgment Must be supported or opposed by particular materials in the record, such as:

• Depositions • Answers to diatgorties • Affidavits • Stipulations

Mandatory Disclosures Scope of Discovery Experts

• Distinguish between experts who will be called to trial and those who will not • Other side can always discover the report of the testifying expert. • If expert is going to testify, the other side, in fairness, has to prepare for cross-examination. - Can discover the amount of compensation, and the facts, data, and assumptions provided to the expert by the lawyer - Draft reports and communications between the lawyer and the expert are generally NOT discoverable. • If expert is NOT going to testify, no discovery absent exceptional circumstances

Attorney-Client Privilege Work-Product Doctrine

• Documents prepared by a lawyer in anticipation of litigation • Such documents may not be privileged, but will be protected

Types of Seizures Warrants - Allows officers to enter an individual's home to arrest that individual

• Does not authorize officers to enter a third party's home or business • Officers must also have a search warrant to search the premises for the individual (or meet an exception to the warrant requirement)

Authentication Review

• Does not mean that the court must find that the document or thing is authentic. • Court simply must find that there is evidence sufficient to support a finding that it is what the party claims.

Personal Jurisdiction (PJ) - In Personam Jurisdiction Constitutional Aspect

• Due process requires minimum contacts between the defendant and the forum state. • Ask: Are there sufficient contacts between the defendant and the forum so that it would be consistent with traditional notions of fair plau and substantial justice to sue the defendant here? • Fair whether to bring D to the state to sue

Real Covenants | Notice What kind of notice is required to run a real covenant?

• Either actual notice or constructive (i.e., record) notice; • inquiry notice may also suffice for an equitable servitude.

Negligence: Vicarious Liability Torts Committed by Independent Contractors

• Employers are generally not liable for torts committed by independent contractors. (1) Independent contractor v. employee (2) Vicarious liability for an independent contractor's torts

Remedies | 10. Specific Performance/Injunction

• Equitable relief is the exception, not the norm in contract law. • Awarded only when monetary damages are considered inadequate for some reason. • Specific performance is presumptively available for real estate transactions. • Specific performance is presumptively not available for contracts of personal service. o Rarely, a court might grant an injunction prohibiting a breaching party from performing similar services for a competitor for a reasonable period of time/place (the Lumley doctrine).

Exclusion of Relevant Evidence (FRE 403)

• Even if the evidence is relevant and there is no particular rule excluding it, the court has discretion to exclude relevant evidence if certain risks substantially outweigh its probative value. • Risks—confusion of the issues, unfair prejudice, misleading the jury, or waste of time • This rule is weighed in favor of admissibility. The probative value must be substantially outweighed by the risks.

Land Sale K's Marketable Title

• Every land sale contract includes an implied covenant of marketable title. o What is marketable title? - Title that is free from an unreasonable risk of litigation

Limited Admissibility (Rule 105)

• Evidence may be admissible for one purpose, but not another purpose. • Upon request of the objecting party, the court will give the jury a limited instruction • the evidence can only be used for one purpose, but not another illegitimate purpose Pay attention not just to the type of evidence but the purpose for which the evidence is being used.

The Exclusionary Rule

• Evidence obtained in violation of the 4th, 5th, or 6th Amendments cannot be introduced at trial to prove a defendant's guilt. • Fruit of the Poisonous Tree: The exclusionary rule also applies to evidence obtained as a result of the initial violation.

When Does the Sixth Amendment Right to Counsel Apply? Examples of critical stages:

• Evidentiary hearings • Post-indictment lineups • Post-indictment interrogations • All parts of the trial process, including guilty pleas, and sentencing There is also a right to counsel in appeals as of right, but this right is provided by the Equal Protection Clause, not the Sixth Amendment.

Mandatory Disclosures Scope of Discovery Exceptions to Discovery

• Evidentiary privilege • Work-product rule

Amendments to the Pleadings - Amendment to Add or Change a Party Incorrect party-in-interest (plaintiff)

• Example: suit brought by a parent corporation when it should have been brought by a subsidiary. • Suit should not be dismissed for having the wrong plaintiff until a reasonable time has been allowed for substitution of the real party in interest. • Amendment to substitute the real party in interest only works if the amendment concerns the same conduct, transaction, or occurrence and the original complaint gave notice to the defendant. - No relation no on ruling

State Regulation and Taxation of Commerce Dormant Commerce Clause - No discrimination against out-of-state interests

• Examples include: Forbidding the sale of only out-of-state products; taxing out-of-state products at a higher rate; requiring that manufacturing be performed in-state. • Hypothetically ok if there is a substantial state interest and no other non-discriminatory means is available; this is incredibly rare.

Implied Reciprocal Servitude

• Exception to the writing requirement • It is a kind of equitable servitude that is implied and need NOT be in writing. • Usually comes up in planned communities (e.g., condo, subdivision);

The Parol Evidence Rule

• Excludes evidence that, if introduced, would change the terms of a written contract • Many contracts are explicitly described as complete integrations—they contain all of the terms of the agreement. • No extrinsic evidence that would change the terms may be admitted. 1. Partial Integration 2. Exceptions to the Parol Evidence Rule

The Parol Evidence Rule Partial Integration

• Excludes extrinsic evidence that would contradicut the terms of the agreement • allows evidence that might add to the terms

Multi-Party Litigation | Compulsory Joinder of Parties Necessary parties MUST be joined if feasible

• Feasible if (i) it will not deprive the court of SMJ (e.g., will not destroy complete diversity) and (ii) the court can assert personal jurisdiction over the necessary party. • Bulge provision: In addition to other grounds for serving an out-of-state party, a necessary party may be served anywhere within 100 miles of the federal courthouse.

Commencement of Proceedings

• Federal civil action is begun by filing complaint a with the court clerk. • For diversity actions, state law controls when an action is begun.

Equal Protection - Suspect Classifications Continued Citizenship status exception - Federal government

• Federal classifications based on U.S. citizenship do not trigger strict scrutiny. • Federal classifications are valid unless arbitrary and unreasonable.

Subject-Matter Jurisdiction | Does this court have the power to decide this kind of case?

• Federal courts are courts of limited subject-matter jurisdiction. • State courts are generally courts of general subject-matter jurisdiction. • For the MBE, unless you are given a state statute that says otherwise, assume state courts have subject-matter jurisdiction over any kind of case

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Advisory Opinions

• Federal courts cannot issue advisory opinions. • Federal courts cannot rule on the constitutionality of proposed legislation. • Look out for proposed legislation on the exam.

Personal Jurisdiction (PJ) - In Personam Jurisdiction General and Specific In Personam Jurisdiction

• Federal courts follow the personal jurisdiction law of the states in which they sit. • There is some variation state to state, but not much.

Preemption

• Federal law preempts (overrides) inconsistent state law. • State law is not preempted simply because it addresses the same subject matter or topic as a federal statute. There must be incompatibility or conflict. • Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the federal statute and is preempted. This is rare.

Federal and State Powers

• Federal powers are superior, but most federal powers are concurrent with those of the states. (If there is a conflict, Congress wins.) • Some powers are exclusively federal, such as the power over foreign relations and the power to coin money.

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue - Standing Examples and Commonly Tested Standing Issues Federal Taxpayers

• Federal taxpayers always have standing to challenge their own tax liability. However, taxpayers do not have standing to challenge government expenditures (no injury) • Legislative standing • "Third-party standing" (Raising the rights of someone else)

Venue Federal Rule

• Federal venue concerns which district should hear a case. • Federal venue is proper in a district: i) Where any defendant reside, as long as ALL defendants reside in the same state; or ii) Where the claim arose • Where a "substantial part of the events or omissions" on which the claim is based occurred or where a "substantial part of the property" that is the subject of the action is located. iii) If neither of the above (rare), any district where the defendant is subject to personal jurisdiction has venue. • Federal venue generally does not rest on the plaintiff's lives. 1. Residence 2. Special Provisions 3. Transfer (one federal court to another)

THE TRIAL PROCESS - Jury Jury Size

• Federal: A jury in a federal criminal case must have 12 members and must decide the case unanimously • States: Can use juries of 6 or more in criminal cases. • State and Federal juries now must be unanimous to convict, regardless of the number of jurors.

Types of Pleadings - The Answer

• Filed by the opposing party in response to the complaint • It may contain responses to the allegations of the complaint, affirmative defenses, and/or counterclaims.

Erie Doctrine | Determining Applicable State Law

• Follow precedent from the highest state court. • If there is no precedent, predict how the highest state court would rule. • Give respectful attention to the decisions of lower state courts (not bound).

Is There a Duty? Scope of Duty—Foreseeability of Harm

• Foreseeability of harm alone does not create a duty. • Most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty.

Second Main Question: Has the contract been performed? "Please Walk Cutie Elephant"

• Four big topics within this question: 1) Parol-evidence rule 2) Warranties 3) Conditions 4) Excuse of performance obligations (impracticability, frustration of purpose, etc.) "Please Walk Cutie Elephant"

LL & Tenant | Tenancies

• Four types of estates that can govern the landlord-tenant relationship (i.e., tenancies): 1. Tenancy for years; 2. Peridoci tenancy; 3. Tenancy at will; 4. Tenancy at sufferance. • You want to know two things: o How is each created? o How is each terminated?

Regulation of Association

• Freedom of association: Cannot be punished or disadvantaged because of political associations. • Public employees can be required to take a loyalty oath to the Constitution, but most loyalty oaths are struck down as vague and/or overbroad • Bar membership: States can investigate good character, but they cannot deny admission based on political affiliations. • Political parties: States cannot require open primaries (i.e., one in which you do not have to be registered as a member of the particular party to participate in the primary).

Substantive Due Process Fundamental Rights Privacy - Obscene material

• Fundamental right to read obscene material in the privacy of one's own home. • However, no fundamental right to purchase, sell, import, or distribute such material. • Does not apply to child porn.

Performance PER | Second ask...

• Gateway Question: Have the parties created an integrated writing? o Complete integration—the contract expresses all terms of the agreement. o partial integration—there is a final writing, but some terms are not included.

Most modern rape statutes

• Gender-neutral • Require lack of consent rather than the force requirement

Specific In Personam Jurisdiction - Federal Exceptions

• Generally, federal courts follow the state long-arm statutes of the states in which they sit. • The exceptions are federal rules that extend in personam jurisdiction of federal courts beyond state boundaries. • These exceptions are often tested on the exam. 1) Federal Interpleader Act (i.e., "statutory interpleader") 2) The Bulge Provision of the Federal Rules 3) Unusual Provision

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue - Standing Examples and Commonly Tested Standing Issues "Third-party standing" (Raising the rights of someone else)

• Generally, the answer is no. • Exception: Parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction.

Citizenship of the Parties - Representative parties

• Generally, the citizenship of the domicile controls. • Exception: For litigation involving a decedent's estate, the citizenship of the decedent controls. • Exception: For the legal representative (guardian) of a minor or an incompetent person, the domicile of the infant or incompetent person controls. • General rule: Citizenship of the representative party controls.

Products Liability - Strict Products Liability Defenses | Product misuse, modification, or alteration

• Generally, the manufacturer (or seller) will be liable as long as the misuse, modification, or alteration was foreseeable. • Foreseeable misuses, modifications, and alterations are viewed as examples of comparative negligence.

Hearsay Exception - Declarant Unavailable Exceptions Former Testimony

• Given by an unavailable witness under oath at a prior hearing or deposition • Admissible in a subsequent trial if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct or cross-examination at the prior trial, deposition, or hearing

Spousal Privileges Spousal Immunity

• Gives a spouse the right to refuse to testify in a criminal case against the other spouse • Applies to currently married spouses • Covers testimony about anything, whether before or during the marriage, but only applies while married to the person Remember that under the federal system, the witness spouse holds the privilege; the defendant cannot prevent the spouse from waiving their privilege if they choose to testify against their spouse.

Remedies | 7. Restitution Damages

• Goal—to give the plaintiff an amount equal to the economic benefit that the plaintiff conferred on the defendant • This can sometimes equal reliance damages, but it need not.

Remedies | 6. Reliance Damages

• Goal—to put a party in the same economic position that it would be in if the contract had never been created in the first place • Ask what loss has the plaintiff incurred that would never have taken place but for the breached contract? • A party CANNOT recover both expectation and reliance damages; typically, the plaintiff must elect one or the other.

State Action | Significant state involvement:

• Government cannot significantly private discrimination • Government cannot facilitate private discrimination. • Government cannot profit private discrimination. • Government cannot financial partner with a private party • Government cannot enforce of a private agreement to discriminate. But, government is not required to prevent private discrimination. • Generally, the government acts constitutionally so long as its own conduct is neutral and even-handed (e.g., trespass laws, liquor licenses for private clubs).

PRETRIAL PROCEDURES - Proceedings before the Grand Jury

• Grand juries can consider evidence that has been obtained illegally or hearsay evidence in deciding whether there is probable cause to indict. • Defendants do not have the right to testify before the grand jury or to call witnesses. • Witnesses do not have the right to counsel within the grand jury room, although they can leave the grand jury room to consult with their lawyers. • Grand jury proceedings are held in secret • The grand jury does not have to be unanimous - majority vote

Negligence - Standards of Care for Specific Situation Automobile Drivers

• Guests and friends in a car—drivers were traditionally liable only for grossly negligent, wanton, or willful misconduct (often under "guest statutes"). • Most jurisdictions apply a general duty of duty standard to the driver of a car.

THE EXECUTIVE POWER AND INTERBRANCH RELATIONS The Powers of the President—Domestic

• Has the power to enforce the law, not to make it or break it • This power is greatest when authorized by statute. • Generally, the President's powers are subject to control by statute.

Other Improper Questions Repetitive questions

• Have already been "asked and answered" • A lawyer can continue to ask the question if the witness has not actually answered it

Specific In Personam Jurisdiction - Quasi-In-Rem Jurisdiction Past Rule

• Historically: it was possible to use quasi-in-rem jurisdiction as a way to get a defendant's assets.

Vicarious Liability

• Holds a person or entity liable for an actus reus committed by someone else • A corporation can be liable for the actions of its high-level employees or the Board of Directors.

Negligence: Vicarious Liability "Dram Shop" Liability

• Holds bar owners, bartenders, and even social hosts liable for injuries caused when people drink too much alcohol and injure third parties • Liability is based on statute and varies by state, especially liability for social hosts. • Direct liability for the server's own negligence in serving the person

What is a "Search"? Reasonable Expectation of Privacy - Places where we do have an expectation of privacy against the government

• Homes • hotel room • Offices • luggage • Backyard of your home (curtilage) • You have a reasonable expectation of privacy in your car, though it is more limited.

Strict Liability - Animals Trespassing Animals Exception

• Household pets, unless the owner knows or has reason to know that the pet is intruding on another's property in a harmful way • Animals on public roads—a negligence standard applies

Character for Truthfulness or Untruthfulness Specific Acts (FRE 608(b))

• May cross-examine the witness about specific acts of dishonesty • Must be probative of untruthfulness • Only permitted to ask; must take the witness's answer • Must have a reasonable basis for asking the question

Mens Rea—The Common Law States of Mind Malice

• I "AM" certain that there are only two malice crimes: arson and murder Malice exists when the defendant acts in reckless disregard of a high degree of harm. The defendant realizes the risk and acts anyway. • Catch-all category • The intent to perform an act, and the act is unlawful • The defendant does not need to know that the act is unlawful; it is sufficient to intend to perform the act that the law condemns • Generally, acts done knowingly, recklessly, or negligently under the Model Penal Code (MPC) are general-intent crimes. General intent crimes most likely to be tested on the MBE include manslaughter and battery

Words to look for - Counteroffers CL

• If • Only if • On condition that • but

Assault - Attempted battery

• If a defendant has taken a substantial step toward completing a battery but fails, he will be guilty of assault • It is a specific-intent crime because it is an attempt; specific intent defenses are available.

Miranda Warnings - The police must cease questioning if either of the following occurs: Invoking the right to remain silent

• If a defendant says she does not want to talk, the interrogation must end. • The right must be affirmatively invoked; it is not enough to just remain silent. • After a substantial period of time, police can go back to the suspect, give warnings again, and seek to talk to the person again.

Substantive Due Process Fundamental Rights Due Process versus Equal Protection

• If a law denies a fundamental right to everyone, it violates due process. • If a law denies a fundamental right to only some, it violates equal protection.

Rule of Completeness (Rule 106)

• If a party introduces part of a written statement, the opposing party may introduce other portions of that statement that are necessary to put the admitted portion into perspective. • Can be introduced immediately; no need to wait for the party's turn to present its case • Other portions may be introduced even if they might otherwise be inadmissible.

Personal Jurisdiction (PJ) - In Personam Jurisdiction Bases for General In Personam Jurisdiction | Physical presence within the state Exceptions

• If a person was in the state only to answer a summons • Persons brought to the state by brought there by force or fraud

Interbranch Relations - Congressional Limits on the Executive Impoundment

• If a statute gives the President discretion to spend or withhold funds, he may do so. • But, if a statute unambiguously requires that certain funds be spent on certain purposes, then the President cannot refuse to do so. There is no power to impound (withhold) funds.

Exceptions to the Warrant Requirement Search Incident to Lawful Arrest

• If the arrest was lawful, a search warrant is unnecessary. • Scope—limited to the immediate area around the individual • Automobile—arrestee must be within reach of the passenger compartment to search it• • DNA—samples may be collected as part of search incident to arrest • Cellphones— need a warrant to search digital contents

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases | Multiple plaintiffs, single defendant (permissive joinders and class action)

• If the claim of one diverse plaintiff against a single defendant satisfies the jurisdictional amount, other diverse plaintiffs who have related claims against the defendant can also be heard even if their claims do NOT satisfy the jurisdictional AIC minimum. • Why? Because a single defendant has not been made a party by Rules 14, 19, 20, or 24. • Supplemental jurisdiction is available on the same logic when multiple plaintiffs do not form a class, but choose to join together in the same action. If one plaintiff has a claim worth $75K+, the others can raise claims arising from the same transaction regardless of amount.

Challenge to Evidence Ruling - Notifying the Court to Preserve it for Appeal Offer of proof

• If the court refuses to admit evidence that should have been admitted, must make an offer of proof on the record • Offer of proof—explain to the court what the evidence would have been and why it should have been admitted • Not necessary if the substance and logic of the evidence is straightforward and clear on the surface

Identification Procedures Admissibility - Lineup evidence at trial

• If the defendant moves to suppress evidence that a witness picked the defendant out of a lineup, the court will consider whether the lineup was impermissibly suggestive • If it was, the court can exclude the testimony.

Types of Seizures Consequences of a stop that is not based on adequate suspicion:

• If the initial stop is unlawful, but the officer develops the basis for a lawful arrest during the stop, evidence seized during the arrest is admissible be used at trial • If the arrest is unlawful, evidence seized during the arrest inadmissible be used at trial

Negligence Defenses: Comparative Fault Modified comparative negligence

• If the plaintiff is MORE at fault than the defendant, then the plaintiff's recovery is barred. • Some jurisdictions: If the plaintiff and defendant are EQUALLY at fault, then the plaintiff's recovery is barred.

Negligence Defenses: Contributory Negligence

• If the plaintiff was negligent in some way, that negligence completely precluded the plaintiff's recovery. • This is the old common-law rule and is still the rule in only a handful of states. - MIN Rule

Motion for a New Trial The new trial order must specify the reasons for the new trial to allow for appellate review.

• If the reason is a question of law, it is reviewed de novo. • Other grounds for a new trial are reviewed for abuse of discretion.

Impleader (Third-Party Practice) Application

• Impleaded party: Third party defendant • Original defendant: Third party plaintiff as against the third-party defendant • Often applies to indemnification contracts • Also often applies to contribution among joint tortfeasors

Impleader (Third-Party Practice) Application Reasoning

• Impleader is not allowed because the other tortfeasor may be liable to the plaintiff. • Impleader is allowed because, given the right of contribution, the second tortfeasor may be liable to the defendant for part of the defendant's liability to the plaintiff.

Substantive Due Process Fundamental Rights Privacy - Abortion

• In Dobbs v. Jackson Women's Health Organization, the Supreme Court held the Constitution does not confer a right to abortion, overruling Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. • State supreme courts can determine whether to make abortion a fundamental right under the state's constitution. • States have the authority to regulate or prohibit abortion and challenges to such regulations or prohibitions are subject to rational basis review

Personal Jurisdiction (PJ) Types of Personal Jurisdiction

• In Personam Jurisdiction: against the person • In-Rem Jurisdiction: against the thing • Quasi-In-Rem Jurisdiction: "sort of" against the thing

Responsibility for Rent - Sublease

• In a sublease, the landlord can collect rent from: o The teant (because of privity of contract and estate) o The subsequent tenant only has rent obligations to the original tenant.

Aiders/Abettors and Conspiracy

• In addition to accomplice liability for the substantive crime, individuals who aid or abet a defendant to commit a crime may also be guilty of the separate crime of conspiracy if there was an agreement to commit the crime and an overt act was taken in furtherance of that agreement.

Responsibility for Rent - Assignment

• In an assignment, the landlord can collect rent from: o The tenant (because of privity of contract); or o The subsequent tenant (because of privity of estate).

Admissions of a Party Opponent Preliminary Questions

• In deciding whether there was a conspiracy or an agency relationship, the court cannot base its finding solely on the contents of the statement itself. • Pure "boot-strapping" is not permitted; there must be some other evidence to support the finding.

Summary | PJ

• In every case, there must be a rule or statute authorizing PJ and the assertion of PJ must be based on minimum contacts between the defendant and the forum state such that it is fundamentally fair to sue the defendant in the state. • PJ of federal court is usually the same as that of the state in which it sits. Federal courts have nationwide in personam jurisdiction in statutory interplead cases and expanded PJ (100 miles) under the "bulge provision" when the defendant is trying to implead a third-party defendant (Rule 14), or trying to bring in a necessary party (Rule 19).

Negligence elements Is There a Duty?

• In general, a duty of care is owed to all persons who may foreseeably be injured by the defendant's course of conduct. • In general, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. a. Duty and Foreseeability b. Scope of Duty—Foreseeability of Harm c. Scope of Duty—Foreseeability of Plaintiff d. Categories of plaintiffs:

Lay Witnesses

• In general, we want fact and not opinion/conclusion from witnesses. • Old rule—prohibited lay witnesses (non-experts) from offering opinions or conclusions • Opinions from lay witnesses are admissible with respect to common sense impressions, such as appearance, intoxication, speed, etc. • Implicit requirement—cannot be based on any purported on any, technical, or specialized knowledge

Is There a Duty? Duty and Foreseeability

• In many jurisdictions, courts refer to foreseeability in deciding whether there is a duty. • There is some overlap with the concept of proximate cause **If you see a problem and you think, this is an unforeseeable plaintiff, look for an answer that says, "No liability because this is an unforeseeable plaintiff," and know that it might be described as a duty problem or a proximate cause problem.**

Discovery Devices | Enforcement Sanctions

• In other cases, the party seeking discovery must go to court and obtain an order compelling discovery. • The court should first issue an order to compel based on the party's request before imposing sanctions. • If that order is disobeyed, the court may do what it deems is necessary. • If the order compelling discovery is granted, the cost of compelling discovery, including attorney's fees, is often placed on the opposing party unless the court finds their refusal was substantially justified or the award of costs would be otherwise unjust.

Character Evidence - Prior Acts

• In some circumstances, evidence of a defendant's past crimes or bad acts can be introduced • "MIMIC" evidence—not used for character evidence; used for some other purpose: 1) Motive 2) Intent 3) Absence of mistake 4) identity 5) Common plan or scheme

Products Liability - Strict Products Liability Defenses | "State of the art" defense

• In some jurisdictions, the relevant state of the art at the time of manufacture or warning is evidence that the product is not defective. • In other jurisdictions, compliance with the state of the art is a bar to recovery.

Consequences of Fifth Amendment Violations Statements in Violation of Miranda

• Inadmissible in the prosecution's case in chief, but can be admitted in order to impeach the defendant to challenge his credibility. • Evidence obtained as a result of a voluntary statement taken in violation of Miranda is admissible

Claim Preclusion (Res Judicata) Final Judgment on the Merits

• Includes a default judgment, summary judgment, and dismissal w/prejudice • NOT necessary that there had been a trial

Tangible Evidence - Authentication

• Includes documents and other physical items • First step—must authenticate the evidence • Must show evidence sufficient to support a finding that the thing is what the party claims it is Does not mean that the court must find that the document or thing is authentic The jury will decide this fact question

Campaign Finance - Independent expenditures versus coordinated expenditures:

• Independent expenditures cannot be regulated. • A coordinated expenditure is a disguised contribution (the campaign is in control) and can be regulated as contributions can be regulated.

Hearsay Exception - Declarant Unavailable Exceptions Dying Declarations Requirements:

• Individual believes she is dying; • Individual believes death is imminent; and • Statement relates to the crime or circumstances of death.

Venue Federal Rule Residence

• Individuals: Residence means domicile. • Business entities: Any business entity (capacity to sue or be sued) resides in every district in which personal jurisdiction exists.

PRETRIAL PROCEDURES - Guilty Pleas For a guilty plea to be valid, the defendant must knowingly and willingly waive these rights. This is accomplished through plea allocution, where the judge:

• Informs the defendant of his rights and ensures the defendant understands those rights; • Informs the defendant of the possible sentences; • Informs the defendant of immigration consequences (the judge is not required to inform the defendant of all collateral consequences, such as difficulty getting student loans); • Makes sure there is a factual basis for the plea; • Determines that the plea did not result from fraud, coercion, threats, or promises

Negligence: Vicarious Liability Torts Committed by Independent Contractors - Vicarious liability for an independent contractor's torts Non-delegable duties

• Inherently dangerous activities; • Duties to the public or specific plaintiffs for certain types of work, such as construction work by a roadway; • Shopkeepers have a duty to keep the premises safe for the public

Strict Liability - Animals Wild Animals Liability to trespassers

• Injuries caused to licensee or invitee—strictly liable • trespasser—not strictly liable • Exception in some jurisdictions: injuries caused by a vicious watch dog

Assault - Fear of Harm

• Intentionally placing another in fear of imminent bodily harm • This form of assault is a general-intent crime.

Multi-Party Litigation | Intervention Types of intervention

• Intervention as of right • Permissive intervention

When Does the Sixth Amendment Right to Counsel Apply? Examples of non-critical stages are:

• Investigative lineups (pre-indictment) • Witnesses looking at photo arrays • Discretionary appeals and post-conviction (habeas) proceedings

Substantive Due Process Standards of Review Strict Scrutiny

• Is the law necessary for a compelling government interest? • Implicit in strict scrutiny is the requirement for the least restrictive means. • When strict scrutiny applies, the government bears the burden of proof. • Applies when there is a suspect classification or a fundamental right

Substantive Due Process Standards of Review Rational Basis

• Is the law rationally related to a legitimate interest? • The challenger bears the burden of proof of showing that this standard is not met. • Very easy for government to pass • Applies to all other cases (residual test)

Substantive Due Process Standards of Review Intermediate Scrutiny

• Is the law substantially related to an important government interest? • Applies to classifications based on legitimacy and gender. • While three standards of review are available in both substantive due process and equal protection claims, intermediate scrutiny has only ever been used to decide cases based on equal protection grounds.

Attorney-Client Privilege Corporate Client

• Issue: who is the client? • Some courts—the "control group" • People with sufficient power to control the conduct of the corporation • E.g., CEO, board of directors Federal courts—the focus should be on the nature of the communication • A communication made by an employee about matters within the scope of employment for purposes of seeking legal advice is privilege, even if the employee is not a member of the "control group."

The Taxing and Spending Power Spending | Anti-Commandeering What can Congress do to enforce regulatory programs?

• It can bribe states through use of the spending power. • It can adopt its own regulatory program and enforce it with federal officers.

Equal Protection (Race, Ethnicity, and National Origin) Suspect Classifications (Trigger Strict Scrutiny and Arise under Equal Protection) — Race, Ethnicity, or National Origin: Affirmative action

• It is a racial classification; an effort to benefit a racial or ethnic minority. • Triggers strict scrutiny and requires a compelling interest • Specific past discrimination: Affirmative action is valid when it specifically corrects past discrimination by the specific department or agency now engaged in affirmative action. • Not allowed in general

Defense Counsel - Conflicts of Interest

• Joint representation can lead to a conflict of interest. • If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. - If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to go forward with joint representation. • If a conflict of interest actually affects counsel's behavior, there is a presumption of prejudice. The defendant is not required to show actual innocence in order to obtain a new trial.

Erie Doctrine | Federal Common Law

• Judge-made federal law that overrides (preempts) any inconsistent state or local law or rule • Federal courts make federal common law ONLY when they encounter important federal interests that are not covered by statute. • Federal courts sometimes "borrow" state law but do so as a matter of federal common law.

Termination Without Trial | Devices

• Judgment on the pleadings; • Rarely used; appropriate only when the pleadings agree on all of the facts • Default judgment (defendant has not shown up); • Voluntary dismissal (dismissal without prejudice); • Involuntary dismissal (dismissal without prejudice); • Summarry judgment.

Remember to concentrate your attention on the areas most often tested:

• Jurisdiction (subject-matter, personal, and venue): MOST important; • Pleadings, especially amendments; • Discovery, especially the work-product rule; • Motions practice, especially summary judgment and the two stages of motion for judgment as a matter of law; and • The effect of former adjudication, namely claim and issue preclusion On essay questions, subject-matter jurisdiction, personal jurisdiction, and venue are often tested together. If you see one issue, be on the lookout for all three.

Appeals - Interlocutory Orders Standards of Review | Findings of fact

• Jury verdicts must be affirmed if supported by substantial evidence. • Judge's findings of fact must be affirmed unless they are clearly erroneous.

Jury Verdict

• Jury's verdict must be unanimous, unless the parties have stipulated otherwise • Verdict must be returned by 6 jurors, unless parties have agreed otherwise.

Defense of Formation | 2. Incapacity - What happens if you make a contract with a person who lacks capacity?

• K voidable —the incapacitated party can disaffirm. • K necessities—the party without capacity must still pay fair value (not necessarily the contract price) Necessity— something you really need to live (e.g., food, clothing, or shelter) • ratify the deal by keeping the benefits of the contract after capacity is obtained (a child reaches 18).

Motion to Dismiss May be used to raise:

• Lack of subject matter jurisdiction • Lack of personal jurisdiction, (including both lack of power and defects in service of process) • Improper venue • Failure to state a claim upon which relief can be granted • Failure to join a necessary party • Forum non conveniens

Negligence - Off-Premises Victim Standard of Care

• Land possessor is generally not liable for injuries resulting from natural conditions - Exception: Trees in urban areas • Artificial conditions—must prevent unreasonable risk of harm to persons not on the premises • Must exercise reasonable care in conducting activities on the land

Land Sale K's Statute of Fraud

• Land sale contracts are subject to the Statute of Frauds. • Three requirements: 1. Must be in writing; 2. Must be signed by the party to be in charge; and 3. Must include essential terms

Defamatory Language

• Language that diminishes respect, esteem, or goodwill toward the plaintiff, or deters others from associating with the plaintiff • Falsity—defamatory statements must be false in order to be actionable • An opinion is not actionable as defamation. An opinion that implies a basis in fact is.

Motion for a New Trial A new trial may be granted in the sound discretion of the court for many reasons, including:

• Legal errors • Newly discovered evidence • Prejudicial misconduct by a lawyer, party, or a juror • Judge concludes that the verdict is against the great weight of the evidence, either in substance of the verdict or amount of damages awarded

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue - Standing Examples and Commonly Tested Standing Issues Legislative standing

• Legislators do not have standing to challenge laws that they voted against. • In some circumstances, the legislature itself as a body may have standing, if the claim concerns its institutional functions. Occasional legislature standing, but not legislator standing

Mandatory Disclosures Scope of Discovery Proportionality

• Limited to matters that are proporional to the needs of the case • Courts consider the importance of the issues, amount at stake, parties' resources and access to information, value of discovery in the case, and, most importantly, whether the burden or likely of discovery outweighs its likely benefit.

Identification Procedures Admissibility

• Lineup evidence at trial • In-court identification

Equitable Servitudes Change circumstances Doctrine

• Look for situations where the restriction no longer makes sense due to drastic changes in the surrounding area since the restriction was put in place. • Critical question: Does the property subject to the restriction still retain some benefit from the restriction?

The Mental States of Accomplices

• Majority and MPC Approaches—the accomplice must act with the purpose of promoting or facilitating the commission of the offense; the accomplice must intend that her acts will assist or encourage the criminal conduct. • Minority Approach—the accomplice is liable if he intentionally or knowingly aids or causes another person to commit an offense. • Criminal Facilitation—under the majority rule, a person who is not guilty of the substantive crime (because he did not act with intent) may nevertheless be guilty of the lesser offense of criminal facilitation for simply assisting

Negligence: Causation Proximate Cause - Foreseeability of Harm

• Majority rule is no liability for an unforeseeable type of harm

Is There a Duty? Scope of Duty—Foreseeability of Plaintiff: Cardozo approach

• Majority view • A duty is owed to a plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct.

Kidnapping CL

• Malicious Burning • Of another person's

Products Liability - Strict Products Liability Defective Product

• Manufacturing defect • Design defect • Failure to warn • Inference of defect

Role of Judge and Jury Preliminary Questions

• Many evidentiary issues are decided prior to trial through motions in limine or preliminary hearings. • Sometimes preliminary questions of law hinge on factual questions • The court decides fact questions that go to the admissibility of evidence. • For preliminary factual decisions, the court is not bound by the Federal Rules of Evidence (FRE).

Appeals - Interlocutory Orders Standards of Review | Matters of discretion

• Many issues decided by lower courts (continuances, new trials, discovery limitations) • Standard of appellate review is abuse of discretion • Any reasonable decision will be upheld.

What is Not Hearsay

• Many statements that meet the definition of hearsay will be admissible under an exception. • The first two categories (discussed in this chapter) are actually exclusions from the definition of hearsay—they meet the definition of hearsay but have been excluded from the rule. 1. Certain Prior Statements of Testifying Witnesses 2.

Demand for Trial by Jury

• May be made by any party either in a pleading or separate motion • Must be made not later than 14 days after service of the last pleading directed at the issue • Often made in the complaint or answer

Exceptions to the Best Evidence Rule Voluminous Writings

• May be presented in the form of a chart or summary • Originals or duplicates must be made available for inspection by the other party

DECLARANT'S AVAILABILITY IMMATERIAL Learned Treatises (scientific, historical, or medical)

• May be used to impeach expert witnesses and as substantive evidence • May be used as substantive evidence once it is established as a reliable authority, an expert relied on it, or it was used to cross-examine an expert

Negligence Immunities - Federal and State Governments State governments and municipalities

• Most states have waived immunity to some extent. • Municipalities are generally governed by the state tort claims statute. Governmental v. proprietary functions • Governmental functions (e.g., police, court system)—immunity applies • Proprietary functions (often performed by a private company, e.g., utilities, parking lots)—immunity is waived

Negligence: Causation Cause in Fact - Multiple or indeterminate causes Common problematic circumstances

• Multiple tortfeasors—it cannot be said that any of the defendant's tortious conduct necessarily was required to produce the harm; • Multiple possible causes—the plaintiff cannot prove which of various possible causes actually caused the harm; or • Loss of chance—patient is misdiagnosed due to the defendant's negligence but cannot show that the misdiagnosis actually caused the harm

Amount in Controversy (AIC)

• Must EXCEED $75,000, exclusive of interest and costs • ONLY relevant in diversity cases • General rule: Any good faith allegation will suffice (NOT whether the plaintiff recovers $75,000) - Only when it appears to a legal certainty that the AIC will not be met will the court dismiss the case for lack of AIC.

Pre-Trial Conference

• Must be attended by the attorneys who will conduct the trial • Must file a pretrial statement detailing claims and defenses, itemization of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc. • Failure to comply usually means that the attorney pays the costs and the other side's attorney fees.

Interrogations - 5th Amendment Statements Made by an Individual

• Must be made by the individual to the government • Key starting point for the privilege against self-incrimination: Miranda v. Arizona

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases | To qualify for supplemental jurisdiction, a cross-claim:

• Must be related to a claim over which the court has subject-matter jurisdiction (i.e., the "anchoring" claim); and • Must not be asserted by a plaintiff against a person made party under Rules 14, 19, 20, or 24.

What is not hearsay - Certain Prior Statements of Testifying Witnesses Prior inconsistent Statements

• Must have been made under oath at a trial, hearing, or deposition • Any prior inconsistent statement can be used to impeach (impeachment is a non-hearsay purpose). • Only prior inconsistent statements made under oath at a trial, hearing, or deposition are admissible as substantive evidence.

The Warrant Requirement Wiretapping constitutes a search.

• Must have probable cause and a warrant • Must specifically identify whose conversations are to be intercepted • Must include an end date for the warrant • Must perform minimization

Answer - Timing

• Must ordinarily be served within 21 days of service of the pleading to which it responds • If defendant agrees to waive service of process, the answer is due within 60 days of when the request for waiver was sent out (90 days if the request for waiver was sent to the defendant outside of the U.S.). • If defendant files a motion to dismiss and the court denies it, the answer is due 14 days after notice of the court's action.

Mandatory Disclosures Three Stages Initial disclosures

• Name and addresses (contact information) of persons with potentially discoverable information • Copies or descriptions of relevant documents or things • Computation of the damages claimed • Applicable insurance agreement(s)

Mandatory Disclosures Three Stages Disclosure of expert witnesses

• Names of expert witnesses who will be called at trial • Qualifications, publications, opinions, information on which they will base their opinions, other cases in which they have testified, and compensation

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue - Standing Examples and Commonly Tested Standing Issues Federal taxpayers Exception

• Narrow exception under the Establishment Clause: An establishment of religion challenge to specific congressional appropriations can be raised by any taxpayers. • Note: state courts often allow municipal taxpayers to challenge a municipality's expenditures.

Negligence: Special Rules of Liability Pure Emotional Harm—Negligent Infliction of Emotional Distress (NIED) | Special relationship

• Negligent mishandling of a corpse • Negligent medical information (e.g., a negligent misdiagnosis)

Is There a Duty? Scope of Duty—Foreseeability of Plaintiff

• No liability to an unforeseeable plaintiff. • Some courts make this a duty issue, some make it a proximate cause issue. Majority view—Cardozo approach vs. Minority view (the Restatement view)—Andrews approach

Special Pleading

• No particular form of words • Alleged with particularity/specificity/detail

Products Liability - Strict Products Liability Plaintiffs

• No privity requirement—can sue up and down the chain of production or distribution • Anyone foreseeably injured by a defective product, including purchasers, other users, and bystanders

"IT" Assault - Damages

• No proof of actual damages is required; the plaintiff can recover nominal damages. • The plaintiff can also recover damages from physical harm flowing from the assault. • In appropriate cases, punitive damages may be available.

"IT" Battery - Damages

• No proof of actual harm is required; the plaintiff can recover nominal damages. • The plaintiff can also recover damages from physical harm flowing from the battery. • Many states allow punitive damages if the defendant acted - Outrageously; or - With malice

State Regulation and Taxation of Commerce Dormant Commerce Clause - No undue burdens on interstate commerce

• Non-discriminatory state regulation of commerce is almost always upheld. • Only when it is so outrageously costly relative to the benefits of the regulation is a non-discriminatory state regulation struck down as an undue burden on interstate commerce • This is a balancing test, but non-discriminatory regulations are rarely struck down

Admissions of a Party Opponent Vicarious Admissions

• Statements made by persons authorized to speak on a party's behalf—speaking agents (e.g., PR reps, lawyers) • Statements made by agents or employees if made within the scope of employment

Discovery Devices | Electronically Stored Information (ESI)

• Normally should be preserved • If lost through unreasonable conduct of a party, the court may order measures to cure the prejudice to the other party. • If the material was destroyed with intent to prejudice the other party, the court may instruct the jury to presume the information was unfavorable, or even order the end of the litigation

Plea Negotiations

• Not admissible in a civil or criminal case • Includes: withdrawn guilty pleas, nolo contendere pleas, offers to plead guilty, and statements made while negotiating a plea

Offers to Pay Medical Expenses

• Not admissible to prove liability for injuries • Statements made or conduct accompanying the offer may be admissible.

Substantive Due Process Fundamental Rights Privacy - Refusal of medical treatment

• Not clear whether this is a fundamental right, but there is a liberty interest in refusing medical treatment • No right to commit suicide

"IT" Trespass vs. Nuisance

• Nuisance—may or may not involve a physical invasion or intrusion • Trespass—ALWAYS involves an actual physical invasion or intrusion upon the land

Voluntary intoxication

• Occurs when a person intentionally ingests the substance, knowing it is an intoxicant • Voluntary intoxication is a defense only to specfic-intent crimes (FIAT crimes), and only if it prevented the defendant from forming the mens rea - Not a valid defense if the defendant got drunk in order to commit the crime - Under the MPC, voluntary intoxication is only a defense to crimes for which a material element requires purpose or knowledge and the intoxication prevents the formation of that mental state.

Involuntary intoxication

• Occurs when a person: - Doesn't realize that she received an intoxicating substance (e.g., "date rape" drugs); - Is coerced into ingesting a substance; or - Has an unexpected or unanticipated reaction to prescription medication. • Can be a valid defense to general-intent, specific -intent, and malice crimes when it negates the mens rea necessary for the crime

Solicitation

• Occurs when an individual intentionally invites, requests, or commands another person to commit a crime • If the person agrees, the crime is conspiracy instead. • If the person commits the offense, the solicitation charge will merge into the completed offense.

Negligence Defenses: Assumption of the Risk Implied assumption of risk - Unreasonably proceeding in the face of known, specific risk

• Occurs when the plaintiff voluntarily encounters a known, specific risk • Contributory negligence jurisdictions and a minority of comparative-fault jurisdictions—this form of assumption of the risk remains a total bar to recovery. • Most comparative fault jurisdictions—this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery. The issue is whether the plaintiff reasonably or unreasonably encountered the risk

2. Firm Offer "All"

• Offeror Merchant. • must be written, • signed by the offeror, and • contain an explicit promise to not revoke • Term Period of either (i) as long as stated in the offer, or (ii) for a reasonable time period not to exceed 90 days

Exceptions to the Warrant Requirement Exigent Circumstances

• Officers are entitled to secure premises (i.e., prevent people from moving things) while they obtain a warrant, but sometimes this is not sufficient. • If officers are in "hot pursuit" or there is an immediate danger, they may conduct a search without getting a warrant first. • This exception does not apply when police create the exigency • Absent exigent circumstances, police need a warrant for a DUI blood draw.

Exceptions to the Warrant Requirement Consent - 3rd Parties

• Officers cannot search over the objection of a present occupant. • Officers can search if the suspect is not present and the other occupant consents.

Types of Seizures Traffic stops

• Officers must have reasonable suspicion to stop a car • Once there is lawful stop, officers may pat down an occupant for weapons if they have reasonable suspicion that the person has a weapon. • Checkpoints—Officers donot need reasonable suspicion to stop drivers if they pull over everyone.

Issue Preclusion (Collateral Estoppel) Actually and Necessarily Decided

• Only applies to issues actually litigated, not to those that might have been litigated • Default judgment: Results in full claim preclusive effect, but no issue preclusive effect because nothing was actually litigated • To be actually litigated, must be some sort of adversarial stance by the parties and an actual resolution of the issue by a factfinder or judge

Performance Conditions | 1. Express Conditions Magic Words

• Only if • Provided that • On the condition that • Only in the event that

Attorney-Client Privilege Communication

• Only the communication is privileged; not underlying facts or evidence that the client has or knows • Does not protect pre-existing documents • Must have been made for purposes of securing legal advice

"IT" Trespass to Chattels Intent

• Only the intent to do the interfering act is necessary; need not intend to interfere • Mistake about the legality of the action is not a defense.

Federal Question Jurisdiction ("Arising Under") Well-Pleaded Complaint

• Only the plaintiff's claims count for determining federal question jurisdiction; the existence of a federal defense does not matter. • Plaintiff does not need to anticipate or plead a response to a defense. A federal defense does not count for federal question jurisdiction, even if it is important.

Appeals - Final Judgment Rule

• Ordinarily, appeals are available only from a final judgment. • A final judgment resolves ALL the claims of ALL the parties. • Partial final judgment: The court may enter a final judgment on some claims by expressly designating the order as final. • Judgment becomes final when entered by the cleark on the court's docket (i.e., not when announced). • Notice of appeal must be filed in the trial court within 30 days of entry of judgment. • A timely post-judgment motion will toll the 30-day limit - won't run until judge rules

Procedural Due Process—the Right to Notice and a Hearing Property

• Out of the three, property is the most heavily tested. Most of the questions in this area concern government jobs or benefits. • You have a property interest in your government job or benefit whenever you have a legitimate entitlement to continued enjoyment of the job or benefit. • A mere expectation of continued employment or benefit does not suffice. • Most government benefits are entitlements, and hence property.

Multi-Party Litigation | Intervention

• Outsider who volunteers to enter a lawsuit • Chiefly a tool for people hoping to join as additional P; governed by Rule 24. • Both types must be timely: "reasonable promptness" • There is no supplement jurisdiction for either kind of intervention when jurisdiction is based on diversity. Diversity case: intervenors must satisfy complete diversity AND have a claim that exceeds $75,000.

Substantive Due Process Fundamental Rights Privacy - Parental rights

• Parents have a fundamental right to raise their children as they see fit, including the choice of religious or private schools. • Can lose their rights through abandonment, abuse, or neglect

"IT" Trespass to Land Necessity as a Defense to Trespass - Private Necessity

• Partial or qualified privilege • D engages in trespass to protect themselves or another party • The defendant must pay for actual damages she has caused. • The defendant is not liable for nominal damages. • The landowner may not use force to exclude the person.

Jury Instructions

• Parties may request specific instructions. • Judge must inform the parties of his actions on those requests and the court's proposed instructions before final argument.

Negligence: Causation Proximate Cause - Scope of Liability

• Person is liable for the risks that made her conduct negligent. The issue is whether the injury that occurred was within the scope of the defendant's breach. • When asking whether a particular consequence of negligence is too remote, ask "is this what made the conduct negligent to begin with?"

Tangible Evidence Real Evidence—Ways to Authenticate

• Personal Knowledge—testimony of a witness that recognizes and identifies the item • Distinctive features or markings • Chain of custody—technique accounting for the whereabouts of an item along an unbroken chain

Summary | There are several bases for general in personam jurisdiction:

• Physical presence of an individual at the time of service of process • domicile / "at home" • Consent

Products Liability - Strict Products Liability Damages

• Plaintiff can recover for personal injury or property damage • Purely economic loss—generally not permissible under a strict-liability theory • May be brought as a breach of warranty claim

Amount in Controversy (AIC) - Aggregation One plaintiff v. two (or more) defendants

• Plaintiff may not aggregate her claims against different defendants. • Claims against each defendant must total more than $75,000.

Intentional Misrepresentation (Fraud) Damages

• Plaintiff must prove actual, economic, pecuniary loss • Nominal damages are NOT available.

Negligence: Compensatory Damages Mitigation of Damages

• Plaintiff must take steps to mitigate damages • Can be considered a duty, but it's more of a limitation on recovery

Misappropriation of Trade Secrets

• Plaintiff owns information that is not generally known (a valid trade secret); • Plaintiff has taken reasonable precautions to protect it; and • Defendant acquires the secret by improper means

Answer - Reply

• Plaintiff's answer to a counterclaim • Rules governing answers apply to a reply.

Personal Jurisdiction (PJ) - In Personam Jurisdiction Specific In Personam Jurisdiction

• Plaintiff's claims against the defendant must arise out of—or directly relate to—the defendants contact with the forum. • State long-arm statutes authorize specific jurisdiction based on some minor contacts. • Remember: GENERAL allows suit on any claim; SPECIFIC allows claims that have a connection to the forum state.

Negligence: Causation Cause in Fact - Multiple or indeterminate causes Alternative causation

• Plaintiff's harm was caused by only one of a few defendants (usually two) and each was negligent, and it cannot be determined which one caused the harm. • Courts will shift the burden of proof to the defendants—will impose joint and several liability on both unless one can show he did not cause the harm

Negligence Defenses: Comparative Fault

• Plaintiff's negligence does not completely bar recovery; it limits the plaintiff's ability to recover • Most jurisdictions have adopted a comparative fault approach. - MJ

Amount in Controversy (AIC) - Aggregation Two (or more) plaintiffs v. one defendant

• Plaintiffs may not aggregate their claims against the defendant. • Each plaintiff must be seeking more than $75,000 from the defendant • Note that if the defendants are jointly liable, they are treated as one defendant. Thus, if plaintiff sues two defendants on a theory of joint liability, seeking a total of $75,001, the AIC requirement is satisfied.

Fifth Amendment Protection against Self-incrimination

• Prevents a witness from being required to give incriminating testimony against himself • Applies only to people (not corporations) • Applies only to current statements (not prior statements) • Does not apply to blood samples, voice samples, breathalyzer, etc. • If no risk of criminal trouble, there is no privilege State can ensure no risk through immunity.

Two important exceptions:

• Private persons acting as government agents • Defense counsel (both public and private) are treated as government actors for purposes of the Sixth Amendment with respect to effective assistance of counsel.

"IT" Trespass to Land Necessity as a Defense to Trespass - Public Necessity

• Private property is intruded upon or destroyed when necessary to protect a large number of people from public calamities. • NOT liable for damages to the property

Equal Protection (Race, Ethnicity, and National Origin) General Considerations

• Privileges and Immunities of National Citizenship under the 14th Amendment—means nothing today (so it is never the correct answer on the MBE) • Privileges and Immunities of state Citizenship Clause in Article IV (Comity Clause) has a narrow but important meaning. It prohibits serious discrimination against out-of-state individuals in allowing access to the private job market, i.e., prohibits requiring those who work in the state to live in the state

Character Evidence - Civil Evidence

• Propensity argument can almost never be made. • Except: in a civil case involving child molestation or sexual assault, the plaintiff may introduce evidence of the defendant's prior of that sort. • Recall that in civil cases, if character is at issue, evidence of that trait is admissible to prove an essential element of the case (i.e., for a non-propensity purpose).

Larceny Elements

• Property • Taking • Trespassory taking (without consent) • Intent

Attorney-Client Privilege

• Protects a confidential communication between a client and a lawyer if the communication was for purposes of securing legal advice • Neither the lawyer nor the client can be forced to testify about the communication.

Spousal Privileges Confidential Marital Communications

• Protects communications made between spouses in confidence in reliance on the sanctity of marriage • Held by both spouses - Spouse can refuse to reveal confidential communications - Spouse can also prevent the other from revealing the communications • Survives after marriage

State Regulation and Taxation of Commerce Dormant Commerce Clause

• Protects out-of-state businesses as well as out-of-state individuals. • "Dormant" describes what the Commerce Clause means in the absence of federal regulation

Tangible Evidence | Documentary Evidence—Ways to Authenticate Self-authenticating documents (FRE 902)—include:

• Public documents bearing a government seal • Certified copies of public records • Official publications issued by public authority • Trade inscriptions • Notarized documents • Commercial paper

"IT" IIED - Public Figures—Constitutional Limitations

• Public figures and public officials cannot recover unless they can show that the words contain a false statement of fact made with "actual malice." • Actual malice—with the knowledge that the statement was false or with reckless disregard of its potential falsity. • The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct at issue is speech on a matter of public concern - look out for this recent ruling.

What is a "Search"? Reasonable Expectation of Privacy - Places where we do not have an expectation of privacy against the government:

• Public streets • open fields (even if they're private property) • Garbage cans left out in the street • Abandoned property • Be aware of who holds the reasonable expectation of privacy and who is claiming the search. The government's actions are valid unless it is the defendant who has the reasonable expectation of privacy

Remedies | 9. Punitive Damages

• Punitive damages are almost never allowed in contract law. • Don't worry about these unless you see a breach that also seems like a tort (e.g., fraud or some other very extreme situation).

Negligence: Compensatory Damages Actual (Compensatory) Damages

• Purpose is to make the plaintiff whole again • Sometimes, a plaintiff who suffers a physical injury can also recover for emotional damages (i.e., "parasitic damages").

Negligence: Punitive Damages

• Purpose is to punish and deter future conduct • May be available if the defendant acted willfully, wantingly, recklessly, or with malice, or if an inherently malicious tort is involved • Availability may be limited by statute • The U.S. Supreme Court has held that as a matter of due process punitive damages must be within a single-digit ratio of any compensatory damages.

Discovery Devices | Six Discovery Devices Oral Deposition

• Questions are asked and answered orallu and under oath • Limited to 10 depositions, unless the court allows more • Each is limited to one day of 7 hours, unless the court allows more • Any kind of notice suffices for the deposition of a party; but a deposition of a nonparty ("mere") witness requires a subpoena. • Subpoena duces tecum—requires the deponent to bring specified documents or things • To depose an organization, serve notice or subpoena on organization; organization then selects person who will be deposed • Can be taken any time after the party has made mandatory disclosures • May be taken before any notary public who is not otherwise disqualified (usually stenographer)

Discovery Devices | Six Discovery Devices Written Deposition

• Questions asked in writing are delivered to a hearing officer who asks the questions orally and the witness answers orally under oath. • Rarely used because they are so inflexible

Discovery Devices | Six Discovery Devices Interrogatories

• Questions asked in writing to be answered under oath in writing • May only be used against another party • Presumptively limited to 25 interrogatories, unless the court allows more • Responses required within 30 days • May respond by producing business records if the answer can be ascertained and the burden of deriving the answers is substantially the same for the party serving the interrogatories as for the responding party

Appeals - Interlocutory Orders Standards of Review

• Questions of law • Findings of fact • Matters of discretion

Personal Jurisdiction (PJ) - In Personam Jurisdiction Bases for General In Personam Jurisdiction | Domicile

• REMEMBER: "Domicile" is where one resides with intent to remain indefinitely. • Domicile is independent of physically present.

Defenses "IT" | Defense of Property - Recapture of chattels (personal property)

• Reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be futile. • If the original taking was lawful (like a bailment) then only peaceful means may be used.

Presumptions

• Rebuttable presumption • Destruction of evidence • Conclusive (or irrebuttable) presumption

Exceptions to the Warrant Requirement Automobiles

• Recall that police are allowed to conduct a warrantless search of an automobile incident to arrest if the arrestee is within reach of the passenger compartment (and to conduct an inventory search of an impounded vehicle). • If police have probable cause to believe an automobile contains contraband, they can search those parts of the vehicle that might contain contraband, even without an arrest.

Privileges & Immunities Clauses Distinguished

• Recall that the Privileges & Immunities Clause of state citizenship under Article IV prohibits serious discrimination against out-of-state individuals, chiefly regarding employment. • The Privileges or Immunities of national citizenship under the 14th Amendment has no modern content and is never a strong answer that something is unconstitutional on the bar exam.

Psychotherapist-Patient Privilege

• Recognized in federal courts and most jurisdictions • Applies to confidential communications between a patient and a psychiatrist, psychologist, or licensed social worker for the purpose of treatment

Requirements of a Complaint Claim for Relief

• Recovery is not limited by the claim for relief as stated in the complaint, except for default judgments • You get what you prove, not what you ask for

Statutory Rape

• Regulatory morals offense that involves consenual sexual intercourse with a person under the age of consent • Statutory rape is a strict liability offense - So long as the defendant knows that he is having sex, he cannot claim ignorance or mistake about the victim's age.

The Exclusionary Rule Key Points

• Remember that suppression is an issue only after you conclude that there has been an underlying constitutional in the first place. • If there was a violation, ask whether the exclusionary rule applies to that kind of violation • Then ask whether one of the exceptions to the exclusionary rule makes the evidence admissible anyway.

Subject-Matter Jurisdiction: Removal Jurisdiction General Rule for Removal

• Removal is proper ONLY if the case could have been brought originally in federal court. • ONLY defendant may remove. - ALL defendants must consent to removal within 30 days of service. • ASK: If the plaintiff had chosen to sue in federal court in the first place, would the federal court have had subject matter jurisdiction? - Well-Pleaded Complaint • "Was the motion to remove properly granted" is a sneaky way to test SMJ

Equal Protection - Fundamental Rights Right to vote—one person, one vote

• Requires districts of approximately equal size, i.e., approximately the same number of voters in each • Applies whenever you elect representatives by election.

Deadly force Duty to Retreat? Minority

• Retreat is required before use of deadly force if it's safe to do so • Even in minority jurisdictions, retreat is never required when the person employing deadly force is in his own home.

Miranda Warnings - The police must cease questioning if either of the following occurs: Invoking the right to counsel

• Right must be affirmatively invoked: "I want a lawyer." • It is not enough to say, "I think I should talk to somebody," or "I want to talk to my... (Parents, doctor, etc.)" • Police do not have to tell the defendant that a lawyer is trying to reach them.

Invasion of Privacy

• Right of privacy applies to individuals, not corporations • Typically terminates upon the death of the plaintiff • Invasion of privacy includes four separate causes of action

Defense of Property

• Right to use only non-deadly force to protect property • The bar examiners often use a scenario involving deadly force designed to protect property during the owner's absence; e.g., the use of booby traps or spring guns. This is not an appropriate use of force.

Character Evidence

• Rule about the certain argument or inference • Prohibits the argument that a person acted in conformity with a particular character trait • Prevents a party from proving a character trait in order to show action in conformity • Rationale—too prejudicial, not that probative of the current conduct, and it distracts the jury's attention

THE EXCLUSIONARY RULE AND ITS EXCEPTIONS

• Rule: Illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal interrogation, is inadmissible at the criminal trial of the person whose rights were violated. • The Exclusionary Rule applies at trial, not to pretrial proceedings (e.g., grand jury proceedings). This is one of the most important Criminal Procedure topics on the MBE.

Waiver of Service - Why say yes to this request for waiver?

• Rules give the defendant an incentive to say yes by extending the deadline for filing an answer. • Usual deadline to file an answer is 21 days after service of process. • Defendant agrees to waive service, then the defendant gets 60 days to answer.

The Best Evidence Rule (Original Document Rule)

• Rule—No describing the documents instead of showing them, unless you really need to • Limits the ability to present other evidence of the content of a document when the contents are an issue • No witness testimony about the contents when you could just produce the actual document

State Regulation and Taxation of Commerce Dormant Commerce Clause - No discrimination against out-of-state interest Exceptions | State as Market Participant Examples

• Sale of cement produced by state-owned plant only to instate purchasers; • garbage stored in state-owned landfill limited to in-state garbage; • law requiring 50% local workforce on state-financed construction projects.

Personal Jurisdiction (PJ) - In Personam Jurisdiction Bases for General In Personam Jurisdiction | Physical presence within the state

• Service of process on the defendant while she is physically present in the state • If person is in the state knowingly and voluntarily, then the person can be served there.

Hearsay Exceptions - Declarant's Availability Immaterial State of Mind (mental, emotional, or physical condition)

• Statement of a declarant's then existing (Inside/forward looking) physical, mental, or emotional condition is admissible to prove the existence of that condition. • A statement of mental impression can be used to prove action in comfority with that intent.

Regulation of Unprotected and Less Protected Expression Obscenity: Defined by the rule of the 4 "S"

• Sexy: Must be erotic; appeal to the prurient interest. (Gore and violence are not legally obscene). • Society Sick: Must be patently offensive to the average person in the society. The society may be the nation as a whole, or a particular state, or a major metropolitan area. • Proper Standard: Must be patently offensive to the average person in the society. The society may be the nation as a whole, or a particular state, or a major metropolitan area. • Lack Sersious Value The material must lack serious value. If material has serious value (artistic, scientific, educational, or political), it cannot be held legally obscene. • This determination is made by the court, not the jury, and it is made according to a national standard, not a local one

Rebuttable presumption

• Shifts the burden of production on a particular issue, but not the burden of persausion • Useful for things that are difficult to prove directly • If counterproof is introduced, the presumption is eliminated (the bubble bursts) and there is sufficient evidence for the jury to decide the issue.

Impeachment Bias

• Showing that the witness has some reason to lie or shade the facts • E.g., relationship with a party, the witness is being paid to testify, the witness has agreed to testify in return for a reduced sentence, the witness has an indirect finance in the outcome of the case, etc.

Permission - Silent Lease

• Silent lease: If the lease is silent on the issue, a tenant may assign or sublet freely.

Sixth Amendment Right to Counsel vs. Fifth Amendment Miranda Right To what charges does the right apply?

• Sixth Amendment right to counsel is offense-specific; a defendant has a Sixth Amendment right to counsel only with regard to the offenses for which he has actually been charged (and any lesser-included offenses) • With respect to unrelated charges, the defendant can be questioned, either expressly or through undercover government agents.

Motions to Terminate Without Trial

• Some preliminary motions are no longer relevant on appeal once there has been a full trial. • A motion to dismiss for failure to state a claim, motion for judgment on the pleadings, motion for summary judgment, or motion for JMOL made before the jury retires are waived if the moving party proceeds with trial once the motions are denied. • Appellate review is based on the judgment rendered after full trial, not the earlier motion.

State Rules on Competency

• Some states have particular competency requirements. • FRE—whether the child has personal knowledge and is mature enough to understand the obligation to tell the truth and is willing to promise to do so • Dead Man's statute (not included in FRE)—limits the ability of witnesses to testify about transactions with people who are deceased • Federal courts using state law to decide a civil case will defer to state competency rules.

Common-Law Murder Four Kinds of Malice - Felony murder can involve

• Someone who resist the felony • When a bystandder is killed during a felony • Third person killed by the resister or police officers (minority) - Majority—agency theory: A defendant is only responsible for the crimes of the defendant's "agents." Because the victim, police, or third party are not the defendant's agents, the defendant is not responsible for their conduct. • If a co-felon is killed by a resister or a police officer, then the defendant is not guilty of felony murder

Relevance Conditioned on Fact (FRE 104(b))

• Sometimes, the relevance of evidence hinges on some fact that is best for the jury. • Courts will simply admit the evidence on the condition that the jury will decide that preliminary fact later.

Statutory Interpleader Has special provisions

• Special jurisdictional amount: Need only be $ $500 • The special jurisdictional amount does not need to exceed $500; it must be $500 or more. • SMJ based on minimal diversity (i.e., when any two claimants are from different states) • Authorizes nationwide service of process • Venue is proper in any district where any district where any claimant resides. • Statutory Interpleader is meant to make access to federal court easier. All usual roadblocks are much lower: AIC need only be $500, there is nationwide service of process, venue is proper anywhere any claimant resides, and only minimal diversity is required.

First-Degree Murder

• Specific-intent crime • Typically defined as a deliberate or premediated murder, or a killing that results during the commission of an inherently dangerous felony (i.e., felony murder is frequently classified as first-degree murder) The question will generally tell you if the case involves first-degree murder. Otherwise, assume the question involves common law murder.

Hearsay Out-of-Court Statement

• Spoken or written • The person who made the out-of-court statement is the declarant. • Statement can also be assertive nonverbal conduct (e.g., pointing).

Interpleader Stakeholder can invoke interpleader either as a plaintiff OR a defendant:

• Stakeholder-plaintiff sues all the claimants as defendants. • Stakeholder-defendant is one who has been sued by a claimant; all the other claimants are joined as plaintiffs.

Establishment of Religion - Standard of Review

• Standard of review is strict scrutiny. This is true for laws that prefer one religion over another and laws that prefer religion over non-religion. • In Kennedy v. Bremerton School District, the Supreme Court "abandoned" the Lemon test (Lemon v. Kurtzman) and endorsement test (i.e., whether a reasonable observer would consider the government's challenged action as an endorsement of religion), replacing them with a consideration of "historical practices and understanding."

State Action | Anti-Discrimination Statutes

• State action is required to show a violation of the Constitution. • State action is irrelevant if there is anti-discrimination legislation.

Remedies | 8. Liquidated Damages

• Stated in the contract as an explicitly negotiated amount due upon breach • Courts are wary about awarding punitive liquidated damages and will do so only if: 1) The amount of liquidated damages was reasonable at the time of contracting; and 2) Actual damages from breach would be uncertain in amount and difficult to prove.

Hearsay Exceptions - Declarant's Availability Immaterial Present Sense Impression

• Statement made while the declarant was perceiving the event (or immediately thereafter) • Describes or explains the event

Specific In Personam Jurisdiction - Quasi-In-Rem Jurisdiction Present rule

• Suit to adjudicate the claim to property of a particular defendant or defendants; the subject matter of the suit may or may not be related to the property. The Supreme Court has held that quasi-in-rem action are subject to the same minimum contact test as applies to personam jurisdiction. • When the property is the subject of the suit, it will constitute an important "minimum contact" between the defendant and the forum, and jurisdiction will probably be permitted as a matter of specific in personam jurisdiction. • When the property is not the subject of the suit, the ownership of property in the state is not nearly enough to establish general jurisdiction over the defendant • Not usually tested. However, if you do get this issue, remember to apply the same minimum contacts test that you would use to test the constitutionality of in personam jurisdiction

Subject-Matter Jurisdiction: Supplemental Jurisdiction Diversity Jurisdiction Cases - Statutory nuances

• Supplemental claims by plaintiffs are allowed if they satisfy the common nucleus of operative fact test. • Supplemental claims by a plaintiff are only allowed if they are brought against a single defendant and no joinder rule is involved in making that defendant a party.

Recent Decisions

• Supreme Court cut-back on notice pleading, due to concerns about excessive discovery and fishing expeditions. • Require that the allegations in the complaintstate a plausible case for recovery • Conclusory Claims: Disregard allegations not entitled to presumption of truth

PRETRIAL PROCEDURES - Competence to Stand Trial

• Test: Whether the defendant comprehends the nature of the proceedings against him and can assist his lawyer in defending the case • If a defendant is competent to stand trial, he is also competent to plead guilty & waive the right to trial.

Appeals - Interlocutory Orders Discretionary interlocutory review | The trial court issues a certificate for interlocutory appeal stating:

• That the issue involves a controlling question of law with the substantial ground for difference of opinion; and • That the immediate appeal may materially advance the termination of the litigation.

State Action

• The 13th Amendment (outlawing slavery and involuntary servitude) applies directly to private parties and individuals, but it is narrow in its focus. • Other individual rights apply to states and localities through the 14 Amendment, which requires state action. • "State action" means government action, whether state or local (e.g., a county firing a sheriff is state action; a city denying a permit is state action). • Most state action is clear, but not always. The government cannot be significantly involved in private discrimination.

The Double Jeopardy Clause

• The Blockburger test • Two warnings about the same offense test

Judges

• The Due Process Clause requires that judges possess neither actual nor apparent bias. • Actual bias consists of interests that would impair the judge's imparticiality

The Cruel and Unusual Punishment Clause - Other Types of Sentences or Punishments

• The Eighth Amendment also prohibits the imposition of cruel or unusual/degrading punishments. • Courts have extended this protection to conditions of confinement (e.g., overcrowding). • You must have been convicted of a convicted for the Eighth Amendment to apply.

PRETRIAL PROCEDURES - Bail

• The Eighth Amendment forbids the setting of excessive bail, but does not state outright that bail must be offered pending trial. • General rule: Bail is available unless the defendant poses either a flight risk or a danger to the community. • There is a presumption in favor bail. • Courts can impose pretrial release conditions on defendants, such as house arrest, avoidance of particular people, or reporting requirements.

Government Speech

• The First Amendment restrictions basically do not apply to the government as a speaker. • Government as a speaker is free to express a point of view (e.g., advertising the military). • The government can build/use all monuments donated by a private person simply because it accepts one—when the government is controlling the message, it is entitled to say what it wants. • But specialty license plates bearing messages requested by purchasers are still government speech, so the government can refuse to issue plates that would be offensive to other citizens.

Mens Rea—The Model Penal Code States of Mind

• The MPC expresses mens rea as: purpose, knowledge, recklessness, and negligence. The MPC also recognizes some strict liability crimes. • Hierarchy of mental states: 1) Purpose—highest level of culpability 2) Knowledge 3) Recklessness 4) Negligence—lowest level of culpability • Look for the mens rea requirement in the statute through words like "knowingly" or "intent to" • If there is no mens rea language, assume the prosecutor must prove recklessness

THE EXECUTIVE POWER AND INTERBRANCH RELATIONS

• The Powers of the President—Domestic • The Powers of the President—Foreign Affairs • Interbranch Relations

Public Trial Rights

• The Sixth Amendment and First Amendment, taken together, protect the rights of the defendant (Sixth) and the public (First) to attend public trials. • Courts have some discretion to close particular proceedings if there is a substantial likelihood of prejudice.

The Apprendi Doctrine (Sixth Amendment)

• The Sixth Amendment right to a jury trial prohibits judges from enhancing criminal sentences beyond the statutory maximums based on facts other than those decided by the jury beyond a reasonable doubt. • Many statutes give the judge wide discretion to sentence the defendant.

The Taxing and Spending Power Spending

• The Spending Power includes spending for the general welfare. • Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause.

Statute of Frauds—The "S" in "All Contracts Don't Stink."

• The Statute of Frauds (SOF) is a barrier that some contracts must meet in order to become legally binding. • Goal—to prevent false assertions about a contract that was never really created • You should always ask two questions here: 1) Does the Statute of Frauds apply to this transaction? Are we in SOF world? 2) If so, has the Statute of Frauds been satisfied? • Contracts in SOF world require a higher and special form of proof—typically a writing signed by the defendant or some performance on the purported deal.

The Cruel and Unusual Punishment Clause - Length of Prison Sentences

• The Supreme Court has given the government free rein to authorize virtually any length sentence for virtually any crime. • Exception: LWOP for crimes committed while a juvenile are unconstituional. A sentence of LWOP for non-homicide crimes committed while a defendant was a juvenile is unconstitutional. However, a sentence of LWOP for a homicide committed while a defendant was a juvenile may be constitutional, provided that the sentence is not mandatory. This is very unlikely to be tested because the details involved are too case-specific.

The Taxing and Spending Power Taxing

• The Taxing Clause is the right answer whenever Congress imposes a tax, even when the tax is actually used to prohibit the good or activity in question. • The tax need only be rational to raising revenue.

Performance Implied Conds | UCC "Mr. Red Sold Drugs"

• The UCC requires perfect tender. o Exceptions—contract explicitly changes the default rule; installment contracts **Do not discuss substantial performance or material breach if the contract involves goods.** • Perfect tender has two main obligations: 1) Perfect goods 2) Perfect delivery **Rejection of the goods IS NOT THE SAME as rejection of an offer.*** 5 things to consider: 1. Revocation of Acceptance 2. Seller's Right to Cure 3. Delivery 4. Method of Tender/Delivery 5. Risk of Loss Problem

Claim Preclusion (Res Judicata) Re-litigation between the Same Parties | Examples of predecessors and successors in interest include

• The assignor and assignee of a claim; • A decedent and the executor of the estate; and • The executor of an estate and persons who claim under the will.

Attorney-Client Privilege Who Holds the Privilege?

• The client holds the privilege and has the right to decide whether to disclose the communication (i.e., waive the privilege). • The attorney must protect the privilege by refusing to talk about such confidential communications.

Interrogation Tactics

• The confession must be voluntary • Statements obtained by threats, even after Miranda warnings, are inadmissible. • Confessions can be the product of deceit

Expert Witnesses Court-Appointed Expert

• The court may appoint an expert witness • Must let each party know what the witness found • Each party can depose the expert and call or cross-examine the expert.

Judicial Notice Doctrine

• The court's acceptance of a fact as true without requiring formal proof • It is about so-called adjudicating facts—facts that the jury would otherwise have to decide • If not subject to reasonable dispute, the court will instruct the jury to accept that fact as proven

Hearsay Offered to Prove the Truth of the Matter Asserted

• The declarant and the witness might be the same person; the out-of-court statement could still be hearsay • If the statement is used for some other purpose (other than the truth of the matter asserted), it is not hearsay.

Wrongful Use of the Legal System - Abuse of Process

• The defendant sets in motion a legal procedure in the proper form but has abused it to achieve some ulterior motive. • Some willful act perpetrated in the use of the process that is not proper in the regular conduct of that proceeding • The conduct must also cause damages

Subject Matter Jurisdiction: Diversity Jurisdiction Complete Diversity

• The diversity statute requires completediversity. • Every citizenship represented on the plaintiff's side of the case must be different from every citizenship represented on the defendant's side. • Does NOT mean every plaintiff must be diverse from every other plaintiff or that the defendant must be diverse from every other defendant • Diversity must only be complete as between plaintiffs and defendants. ** One Exception - Minimal Diversity**

Performance Implied Conds | Common-Law Universe

• The doctrine of substantial performance states that a party will satisfy the CCE if there is not a material breach "big deal" breach. • Substantial performance only works to satisfy the CCE if the failure is not willful/w/reason.

The Best Evidence Rule (Original Document Rule) Contents "at issue"

• The document is used as proof of an event • The document has actual legal effec, such as a contract or will • The witness is testifying based on facts only learned from the document Contrast with situation where a witness actually saw what happened but there also happens to be a recording—the witness is permitted to describe his or her personal knowledge; does not mean there is a best evidence problem

Tenant's Duty to Avoid Waste

• The duty to avoid waste is a background rule; it does not have to be express in a lease in order to apply. • The tenant has a duty not to commit affirmative (voluntary) waste or permissive (neglectful) waste. • A tenant may make changes to the property that increase the property's value ("ameliorative waste"). Landlords usually require permission before a tenant can make the change.

Negligence: Vicarious Liability Respondeat Superior

• The employer is held vicariously liable for the negligence of an employee, if it occurred within the scope of employment. • Distinction: Employer's own negligence v. vicarious liability for an employee's conduct Direct negligence—the employer is liable for the employer's own negligence. Vicarious liability—the employer is liable for the employee's actions.

Answer - Responses

• The failure to respond constitutes an admission • Unless cured by amendment, the admission is binding in the action. • Usual practice: a "boilerplate" denial of everything not specifically admitted

Intergovernmental Immunities

• The federal government is generally immune from direct state regulation or taxation. However, states can tax indirectly (e.g., taxing the income of federal employees). • States are not immune from direct federal regulation (e.g., pollution regulations, employment laws, etc.). • States cannot shield state officers from federal liability for violating federal constitutional rights. • Exception: The anti-commandeering principle covered in Chapter 3.

Role of Judge and Jury

• The jury decides questions of fact; the judge decides questions of law. • The question of whether a piece of evidence gets in is a question of law. - The judge decides whether evidence is admissible. - Includes whether there is a privilege or whether witnesses are qualified

Hearsay Exceptions - Declarant's Availability Immaterial Past Recollection Recorded - When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if:

• The record concerns a matter about which the witness once had knowledge; • The record was prepared or adopted by the witness when the matter was fresh; • The record accurately reflects the witness's knowledge; and • The witness testifies he has insufficient memory of the event to testify fully and accurately (even after consulting the writing while on the stand).

Substantive Due Process Fundamental Rights Second Amendment - Right to bear arms

• The right to firearms is presumptively protected by the Second Amendment. The test for gun regulation is not intermediate scrutiny. In particular, there is to be no balancing of the costs and benefits of firearm regulation. • The test is historicial. Firearm regulations are valid only if they fit the history of the Second Amendment. Banning firearms in schools, government buildings, and other sensitive locations is widely accepted, as is prohibiting possession by felons. The government cannot require individuals who wish to get licenses to carry firearms to show that they had some special need for self-defense. Everyone has that right.

Negligence: Breach of Duty — Custom Physicians Informed consent - Doctors are not required to inform the patient if

• The risks are commonly known; • The patient is unconscious; • The patient waives/refuses the information; • The patient is incompetent; or • The patient would be harmed by disclosure (e.g., it would cause a heart attack).

Citizenship of the Parties - Corporations Citizen of

• The state, states, or foreign countries in which it is incorparted; and • The state or country where it has its principal place of business (where its executive offices are located) • Remember, when a corporation is a party, you still need COMPLETE diversity between plaintiffs and defendants, so you must consider EVERY state where the corporation has citizenship.

Erie Doctrine | State Substantive Law

• The substantive rules that govern conduct, i.e. what must be proved to win a case and what defenses may be asserted; • State statutes of limitations on state causes of action; • The burdens of proof on state claims or defenses; and • State rules on conflict of law

Campaign Finance

• The use of money to support a political campaign is political speech and the regulation of that money raises First Amendment issues. • The constitutional protection of direct independent expenditures applies not only to individuals, but Corporations, including nonprofits, and unions. • The Supreme Court has consistently rejected equalization of campaign resources as a valid rationale for restricting campaign expenditures.

The Exclusionary Rule Standing

• The violation must have been of the defendants rights, and not someone else's rights • One slight qualification: If the driver of a car is arrested without probable cause, passengers are deemed to have been seized as well, so they can challenge the constitutionality of the stop.

Negligence Defenses: Assumption of the Risk Express assumption of risk - Courts might not enforce exculpatory provisions in certain situations

• The waiver disclaims liability for reckless or wanton misconduct; • There is a gross disparity of power between the two parties; • The party seeking to enforce the provision offers services of great importance to the public (e.g., medical services); • The provision is subject to contract defenses (e.g., fraud or duress); • The enforcement would be against public policy

The Exclusionary Rule 5½ Exceptions - Good faith | Officers can rely on a warrant unless

• The warrant was obtained by unvalid/defective • The warrant was obtained in reliance on an unacceptably bare-bones affidavit (defective on its face) • The magistrate wholly abandoned his judicial role

Impeachment Sensory Competence

• The witness is mistaken in some way. • The witness did not see or hear things as well as she thinks.

Accomplices

• Theory for holding people other than the principal responsible for the crime committed by the principal; same degree of responsibility as the principal • People who assist the principal either before or during the commission of a crime • Must act with the intent of assisting the principal to commit the crime; bystanders, even approving ones, are not accomplices • Liable as an accomplice for both the planned crime and any other forseeable crimes that occur in the course of the criminal act • An accomplice can be criminally liable even if he or she cannot be a principal or even if the principal cannot be convicted.

Types of Seizures Warrants - Absent an arrest warrant, officers can only arrest someone inside a dwelling if:

• There are exigent circumstances (e.g., felony hot pursuit or danger to others); or • There is consent to enter.

DECLARANT'S AVAILABILITY IMMATERIAL Reputation

• There is a hearsay exception for the reputation or character of a person. • Available in the narrow circumstances when reputation/character evidence is admissible

Homicide Causation

• There must be a causal relationship between the defendant's actions and what happened to the victim • Actual Causation: Victim would not have died " but for" what the defendant did • Proximate Causation: Defendant's act is a foreseeable cause of the victim's death (death is the natural and probable result of the conduct) - Consent is not a defense to any type of homicide. • Assisted suicide is a homicide by the assister, except in jurisdictions that permit assisted suicide.

Types of Seizures Arrests

• There must be probable cause to believe that the arrested individual has committed a crime • Can be with or without an arrest warrant • Pretext arrest: As long as the police have probable cause to believe an individual committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is probable cause or some other crime.

Other Sex Crimes at Common Law

• These are extremely unlikely to be tested on the bar exam. • Adultery: Having sex with someone who is not your spouse • Fornication: Sex between unmarried people • Crimes against nature: Bestiality • Incest: Sex between people who are too closely related to one another • Bigamy: Marrying someone while you are still legally married to someone else • Seduction: A man tells a woman that he will marry her if she has sex with him

Negligence - Standards of Care for Specific Situation Common Carriers and Innkeepers

• Traditional rule: utmost care—highest duty of care consistent with the practical operation of the business • Many courts today: liable only for ordinary negligence (not a higher standard) • A majority of courts continue to hold common carriers to the higher standard of care, but now hold innkeepers to the ordinary negligence standard.

Negligence Immunities - Federal and State Governments

• Traditionally, state and federal governments were immune from tort liability. • Immunity has been waived by statutes. (1) Federal Tort Claims Act (2) State governments and municipalities (3) Government officials

2) Takes "subject to" the mortgage

• Transferee is not personally liable upon default. • If the deed is silent or ambiguous as to liability, the transferee/buyer is considered to have taken title subject to the mortgage.

The Powers of the President—Foreign Affairs Treaties and Executive Agreements

• Treaties are negotiated by the President, but require approval by a 2/3 vote of the Senate. Once a treaty is ratified (approved), it has the same authority as a statute. • Executive agreements are presidential negotiations not submitted for approval by the Senate. They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. They do not have the binding status of a treaty.

Equal Protection - Quasi-Suspect Classifications (Gender and Legitimacy)

• Trigger intermediate scrutiny—is the law substantially related to an important government interest? • Legitimacy (i.e., something depends on whether parents were married at the time of one's birth) laws are almost always invalid, especially if punitive in nature.

Negligence: Joint and Several Liability

• Two or more defendants are each liable for a single and indivisible harm to the plaintiff; each defendant is subject to liability to the plaintiff for the entire harm. • Plaintiff can recover all of his damages from any negligent party • Multiple defendants can be held jointly and severally liable, even if a jury apportions each defendant a different percentage of fault. **Some jurisdictions limit a defendant's joint liability if he is less than 10% at fault. The defendant will be liable only for his share of fault.**

Negligence: Joint and Several Liability Application

• Two or more tortfeasors; • Tortfeasors acting in concert; • Alternative liability; • Res ipsa loquitur used against multiple defendants; • Both employer and employee are liable

Negligence Defenses: Assumption of the Risk Express assumption of risk

• Typically a writing, such as an exculpatory clause in a contract • In general, parties can contract to disclaim liability for negligence. • Courts will ask two questions: 1) Is the waiver clear? 2) Is the waiver enforceable?

Termination Without Trial | Involuntary Dismissal

• Typically w/prejudice • Involuntary dismissal for lack of jurisdiction, improper venue, or failure to join an indispensable party is w/o prejudice. • In all other cases, involuntary dismissal is with prejudice. - Dismissal with prejudice is an adjudication on the merits, which means that, under federal law, it is given full res judicata (preclusive) effect, which bars any attempt at re-litigation of the same claims. • May be imposed for plaintiff's failure to prosecute or for failure to comply with the FRCP or any court order • Standard for appellate review is abuse of discretion.

Remedies | 2. Anticipatory Repudiation UCC

• UCC—Reasonable grounds for insecurity about the other side's performance allows you to demand an adequate assurance of perfect of performance. o If the party fails to respond within a reasonable time, you can treat this as repudiation.

Interbranch Relations - Congressional Limits on the Executive Legislative Veto

• Unconstitutional; • Arises when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. • If Congress wants to override executive actions, it must change the law (so that the President has an opportunity to veto the new legislation). • Congress cannot evade the President's guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution.

Model Penal Code and other Modern Changes

• Under the MPC and in many jurisdictions, crimes such as larceny, false pretenses, and embezzlement are treated as a single statutory crime of theft (which includes both tangible and intangible property). • Be sure to note whether a question wants you to use the MPC definition (i.e., all the theft crimes are treated equivalently) or the common law definitions (in which case, you must work your way through the elements).

Interbranch Relations - Immunities Legislators

• United States Senators and Representatives (not state legislators) are protected by the speech/debate Clause. • Senators and Congressmen and their aides cannot be prosecuted or punished in relation to their official acts - official acts cannot be introduced into evidence (Bills/voting) - The official acts of a federal legislator cannot be introduced into evidence.

Battery

• Unlawful • Application of force • To another person • That causes: - Bodily harm OR - An offensive touching

Common-law rape requires

• Unlawful • Sexual intercourse • With a female • Against her will by force or threat of force The MBE will not likely test on common-law rape because the elements have been relaxed or eliminated in most modern statutes.

Kidnapping Requirements

• Unlawful • confinement of another person • Against that person's will • Either by moving or hiding the victim

Battery Elements

• Unlawful [consent is a defense • Application of force • Battery is a general-intent crime, so voluntary intoxication and unreasonable mistake of fact are not available defenses. • Does not require actual physical contact between the defendant and the victim (e.g., throwing a rock that hits someone)

1) "Assumes" the mortgage

• Upon default, if the buyer/transferee assumes the mortgage, the transferee is personally liable for the mortgage. • Note: Both the original mortgagor and the transferee are liable upon default. • In most jurisdictions, the assumption agreement does not need to be in writing

Specific In Personam Jurisdiction - Federal Exceptions Unusual Provision

• Use: Defendant not subject to personal jurisdiction in any state court • Rule 4(k)(2): applies only when plaintiff is suing under federal law • When the plaintiff is suing under federal and no state has jurisdiction over this defendant, the federal court can exercise jurisdiction so long has the defendant has sufficient with the U.S. as a whole. • Used rarely; most relevant with foreign defendants with no particular contact with a particular state

Interpleader

• Used to resolve the problem of competing claims to the same property • Designed to avoid inconsistent obligations or multiple claims • Property at issue is called the stake. • Person holding the property is the stakeholder. • Persons claiming the property are stakeholder Claimant. • If stakeholder claims a right to keep the property, then the person is called a stakeholder Claimant..

Types of Pleadings - The Complaint

• Used to state a claim for relief • P against D - Normal complaint • The plaintiff or the defendant may file a claim against a co-party, called a cross complaint. • A defendant files a third-party complaint to implead a third-party defendant

Discovery Devices | Six Discovery Devices Request for Admission

• Used to streamline the litigation 1) Failure to respond within 30 days is an admission. • Recall that because responses to requests for admissions (and all other documents) must be signed by the attorney of record, and the signature certifies that there is a reasonable basis and good faith for denying the request, failure to respond to a request for admission may be a violation of Rule 11. 2) Admissions are binding in litigation, but have no preclusive effect (i.e., only binding in the current lawsuit; cannot be used against the party in any future proceeding).

Negligence: Causation Cause in Fact - Multiple or indeterminate causes "Substantial factor" test

• Used when there are conceptual problems with causation due to multiple causes • The test is whether the defendant's tortious conduct was a "substantial factor" in causing the harm. • Third Restatement refers to this as "multiple sufficient causes" doctrine

Motion for a New Trial

• Usually made with a Renewed Motion for JMOL; both must be made no later than 28 days after the entry of judgment • Not restricted in the same way as a Renewed Motion for JMOL

Certification of Pleadings

• Verification: Most pleadings are NOT verified (not sworn to), nor do they have to be. • Certification: Pleadings and other documents—including motions and discovery requests—must be signed by attorney of record and provide the attorney's contact information. • Denials must have such support or must be reasonably based on lack of information or belief.

Real Covenants | Vertical Privity

• Vertical privity refers to the relationship between the original party to the agreement and his/her sucessor to the property. • To run the burden of the covenant to the successor, the successor must take the original party's entire interest. This is called strict vertical privity. • To run the benefit of the covenant to the successor, the successor need only take an interest that is carved out of the original party's estate. This is called relaxed vertical privity.

Products Liability - Warranties

• Warranty claims may generally be brought up and down the distribution chain. • Privity is not required.

Subject-Matter Jurisdiction: Removal Jurisdiction Removal of Federal Question Cases

• Well-pleaded complaint rule: Federal question jurisdiction on whether the federal question appears on the face of the well-pleaded complaint. • Removal does not change that rule: If the well-pleaded complaint discloses that the plaintiff's claim is based on federal law, then the defendant may remove to federal court. • If the plaintiff's claim is based on state law, defendant cannot remove to federal court, even if the defendant has raised a federal defense.

Impeachment of a Hearsay Declarant

• When an out-of-court statement comes in under a hearsay exception, the declarant (the person who made the statement) is acting like a witness and can, therefore, be impeached. • Impeachment may be made by any evidence that would be admissible if the declarant had testified as a witness.

Strict Liability - "Abnormally Dangerous" Activity factors:

• Whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care; • The significant risk of the harm resulting from the activity; • The appropriateness of the location for the activity; • Whether it has great value to the community

Perjury

• Willful act of falsey promising to tell the truth, either verbally or in writing, about material matters • The person must know what they are saying is false, must intend to say something that is false, and the falsity must go to a material fact of the matter.

Exclusion of Witnesses

• Witnesses must be excluded from the courtroom upon the request of either party to prevent the witness from hearing the testimony of others. • If a party requests exclusion or the court deems it necessary, the witness must be excluded, subject to the exceptions below.

Real Covenants | Requirements to Run - Five elements

• Writing; • Intent; • Touch and concern; • Notice • Privity

Service of Process for In Rem and Quasi-in-rem Actions

• You must make a diligenteffort to locate all claimants to the property (res) and serve them personally. • If the claimants cannot be located, then notice by publication is permitted. • You CANNOT rely on notice by publication if you actually know or can readily find out the names and addresses of the other claimants; they must be served personally.

Examples non-economic/non-commercial activity because substantial effect was not found

• a statute prohibited possession of a firearm within 1000 feet of a school—it could not be proved that it was an economic or commercial activity, and it could not be demonstrated that there was a substantial effect on interstate commerce • a statute provided a federal remedy for gender-motivated violence—it could not be shown that, in the aggregate, the activity had a substantial effect on interstate commerce • the individual mandate required individuals to buy health insurance or to pay a penalty for not doing so—the Court said that forcing individuals who are not engaged in commercial or economic activities to buy health insurance they do not want cannot be sustained as a regulation of interstate commerce

Defense of Formation | 6. Illegality

• are enforcement defenses, not formation defenses - b/c meeting of minds. • do not prevent the formation of a contract, but will impact its enforceability. • llegal contracts are unenforceable. • furtherance of an illegal act (that is not itself illegal) will still be enforced. • Typically, the law will just leave the parties where they stand. • modern trend toward allowing less-guilty parties to recover restitution (i.e., get their money back). • Contracts against public policy—are not enforced. These are contracting situations that are not formally illegal but present some other policy concern (e.g., a broad exculpatory agreement).

Affirmative Duty to Act - By relationship

• defendant has a special relationship with the plaintiff

Special Pleading - Special Pleading

• fraud or mistake must be specially pleaded. • Claims for special damages must be specially pleaded (i.e., damages that do not ordinarily follow from the wrong)

What is an Acceptance "All"

• manifestation of a willingness to enter into the agreement by the offeree. • objective test • "offeror is the master of the offer" • the offeree must accept the offer according to the rules of the offer

Prosecutors | Four Prosecutorial Duties - Brady doctrine

• material evidence—disclosure could change the outcome of the case • Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. - Includes evidence within the control of the government (including the police) • If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information - Many states and some D.A.s offices have an open file policy allowing the defense to see the information.

Negligence: Compensatory Damages Personal Injury—Categories of Compensatory Damages

• medical expensives, both past and future • Lost income and reduced income capacity • Pain and suffering, both past and future

Negligence - Standard of Care | Children

• modified standard—reasonable child of similar age, intelligence, and experience • Adult activities—Children engaged in high-risk adult activities (e.g., driving a car) are held to the objective standard for adults.

Procedural Due Process—the Right to Notice and a Hearing If life, liberty, or property is being taken by the government, what process is due? -- Public employees who can be fired only "for cause"

• must be given some opportunity to be heard prior to discharge, unless there is a significant reason not to keep the employee on the job. • If there is a significant reason not to keep a person on the job, then the discharge can come first with a subsequent hearing that is prompt and provides reinstatement with back pay (fair).

4. Detrimental Reliance "All"

• offeree reasonably and detrimentally relies on the offer • foreseeable manner. • Look especially for a general K/subcontractor context • contractual liability ("Promissory Estoppel")

Negligent Misrepresentation Damages

• plaintiff can recover reliance (out-of-pocket) and consequential damages if the negligent representation is proven with sufficient certainty • Do not confuse this with the tort of negligence. Negligence generally applies when there is physical bodily injury or damage to property.

Free Exercise of Religion - Religious Conduct Neutral regulation of conduct | Employment Division v. Smith (peyote case

• states were allowed to outlaw hallucinogens, even as to Native Americans who claimed a religious motivation for their use. No constitutional requirement to accommodate their religious beliefs if the conduct was regulated mutually and across the board • But, a city could not refuse to deal with a Catholic foster-child placement agency unless it agreed to serve same-sex couples and a tuition assistance program for preschool could not be limited to nonsectarian institutions. • The case law is uncertain, but the laws that were struck down were unconstitutional because they exceptions on some ground. If a law allows exemptions from generally applicable regulations, it must allow religious exemptions unless there is a compelling reason not to do so.

Defenses "IT" | Implied Consent

• the plaintiff is silent (or otherwise nonresponsive) where their silence and continued participation can reasonably be construed as consent • A defendant could be liable if the conduct is reckless • Mutual consent to combat/fight

Defenses "IT" | Express Consent

• the plaintiff, by words or actions, manifests the willingness to submit to the defendant's conduct. • The defendant's conduct may not exceed the scope of the consent.

Common-Law Murder

• unlawful killing of another human being committed with malice aforethought • Lawful killing of another is not murder (e.g., state execution or a police officer's justifiable use of deadly force)

Examples economic/commercial activity was presumed because the question was judged in the aggregate

• wheat growing case where growing crops for sale was judged in the aggregate and a substantial effect was demonstrated - Wheat sold nationwide • where the cultivation and medical use of marijuana was judged in the aggregate and a substantial effect was demonstrated - because it affected it Nationwide