Criminal Procedure, Secured Transaction, Civil Procedure, Constitutional Law, Evidence, Wills, Trusts, Criminal Law, Torts, Property

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

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.

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.

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.

Liability of subsequent transferee

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

Merger - Inchoate and Completed Offenses

1) Attempt 2) Solicitation 3) Conspiracy

Two Types of Trust

1) Resulting Trusts 2) Constructive Trusts

Assault Two Forms

1. Attempted battery 2. Fear of Harm

Private Express Trusts

1. Intent 2. Trust Res 3. Trust Purpose 4. Beneficiaries

Deed Execution

1. Signature 2. Agents

The Powers

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

Types of Pleadings

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

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

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)

Merger - Inchoate and Completed Offenses Attempt

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

Future Interests - Fee Simple Interests Defeasible Fee

A fee simple that can be cut short (could go on forever, but might not) • Fee simple determinable • Fee simple subject to condition subsequent

Future advance mortgage:

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

Burden of persausion

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

Shelter Rule

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

Non-Deadly force

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

Construction (Interpretation) - Ademption Ademption by extinction

A will makes a specific devise of property, but the specific piece of property is no longer in the estate at the testator's death.

regulatory taking

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

Trustee's Duties - Duty of Care Special Skills | Administrative Duties - Duty to Inform Beneficiaries

About the nature of the trust property

Defenses to Defamation Privileges

Absolute privileges Conditional privilege CL

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

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.

Due-on-encumbrance clause

An acceleration clause when the mortgagor obtains a 2nd mortgage or otherwise encumbers the property.

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.

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.

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."

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.

Termination - Expiration

An express trust can expire at the end of a stated term

"IT" Public Nuisance

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

If the restraint is valid:

Any attempt to alienate the property will be null and void.

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.

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.

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).

Amendments to the Pleadings - Types of Amendments

As of Right By Leave of Court

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

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.

Prohibited Legislation - Contract Clause

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

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.

Conspiracy - Overt act

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

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).

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)

Construction (Interpretation) - Lapses and the Anti-Lapse Statute Special rules for class gifts

Common Law: Exception to the lapsed gifts rule • If a member's gift lapses, the rest of the class share that member's gift. • Keep this in mind if you get a question with a class gift and the lapsed recipient is not protected by the anti-lapse statute. • If the lapsed member is covered by an anti-lapse statute, that rule controls. • If the lapsed members is NOT covered by an anti-lapse statute, the rest of the class members share the lapsed member's gift

Robbery

Common law robbery is a simple equation: Robbery = larcency + assault

"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.

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

Strict Liability Defenses

Contributory Negligence Comparative Negligence Assumption of the Risk

Corporations

Corporations have the same First Amendment right to speak as individuals.

Mistakes

Courts tend to be less forgiving when it comes to mistakes

Resulting Trusts - Avoiding a Resulting Trust

Create a gift over clause

Potential Claimants

Creditors Transferees/Buyers Other secured parteis

Spouse

Decedent's marital partner

Ancestors

Decedent's parental line (i.e., parents, grandparents, etc.)

Notice and Service of Process NOT accepted:

Delivery to attorney of record is not proper service unless state law provides otherwise

Implied Easements Scope

Determined by the nature of the prior use or necessity

Defense Counsel - Effective Assistance Performance

Did defense counsel's performance fall below the wide range of reasonable conduct that lawyers might engage in?

Sixth Amendment Questions to Ask:

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

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.

Equitable Servitudes Defenses

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

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.

Mens Rea—The Common Law States of Mind Malice Examples

Examples include: battery, kidnapping, rape, and false imprisonment.

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.

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

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.

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.

Mandatory Disclosures Scope of Discovery Protective Orders

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

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.

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

Class Gifts and Similar Terms

Generally, a gift to a group of individuals with an automatic right of suvivorship. • On the death of a class member, that member's share is autmoatically re-divided among the surviving class members. • RST 3rd: The share of a deceased class member goes to the class member's surviving issue.

Destruction of evidence

If a party destroys evidence, there is a presumption that it would have been adverse to that party.

Installment Land Contract Traditional rule:

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

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.

Substantive Due Process Fundamental Rights Privacy - Family relations

Includes the right to live together with close relatives

Heirs

Individuals entitled to receive property by intestate succession. Living people do not have heirs

. Intangible Collateral

Intangible collateral includes nine classes of personal property. The more frequently tested types of intangible collateral are: 1) Accounts 2) Deposit Account

Private Express Trusts - Intent Ask yourself

Intent is tested frequently. Ask yourself, "Who has the beneficial interest?" That should distinguish it from a gift. A gift is a revocable, outright gift. A trust involves a bifurcated transfer - the settlor gives the property to one person for the benefit of another

Kidnapping Malicious Burning Elements - Malice

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

"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.

Formal Wills Witnesses (Attestation) | Interested witnesses CL

Interested witness was not competent to witness the will

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.

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.

Future Interests

Key question: Who has the right to possess property? • Possessory estate holder has right to present possession. • Future interest holder has a present right to future possession.

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

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**

Dominant Estate:

Land benefit by the easement

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.

Will

Legal document used to dispose of the decedent's property

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

Levied on personal property

Deadly force Duty to Retreat? Majorty

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

Difference between trusts and debts

Make sure you understand the difference between trusts and debts. A debt is an obligation to pay a sum of money. The source you use to pay the money usually does not matter. A trust necessarily involves a segregated source of funds.

Formal Wills Witnesses (Attestation) | Interested witnesses Purge Theory

Many states have adopted this theory. • If a witness (or witness's spouse) has a direct financial interest under the will, it does not affect the validity of the will. • BUT, probate court will purge any gain in excess of what the witness would take under intestate succession.

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.

Income

Money invested by the trust

Formal Wills Witnesses (Attestation) | Presence MJ

Most jurisdictions: • Testator must sign or acknowledge the will in the presence of the witnesses; and • Witnesses must sign in the presence of the testator.

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.

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.

Charitable Trusts

Must have a charitable purpose, such as: • Relief of poverty; • Advancement of education or religion; • Promotion of good health; • Governmental or municipal purposes; • Other purposes benefitting the community at large or a particular segment of the community. Modern Trend: To validate a charitable trust

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.

Charitable Trusts - Does RAP apply?

NO

Invasion of Privacy Defenses - Truth

NOT a defense to privacy torts, as opposed to defamation

Miranda Warnings - Magic Words

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

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

Deed Recording | What is the purpose of recording?

Notice. Tell the world you own the property.

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.

Substantial

One that would be offensive, inconvenient, or annoying to an average person in the community.

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.

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)

Trustee

Person who manages the trust • Holds legal title to the property • Has power to manage the property (i.e., sell, transfer, invest) • Can be an individual, a bank, or a trust company • A trust will not fail for lack of trustee

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.

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

Discretion functions

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

Cooperatives

Property is owned by a corporation (made up of residents/shareholders) that leases individual units to shareholders (residents).

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

The Exclusionary Rule 5½ Exceptions - Independent source

Relevant evidence discovered on the basis of an independent source will be admissible.

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

Class Actions - Dismissal or Compromise (Settlement)

Requires judicial approval

Is There a Duty? Categories of plaintiff

Rescuers vs. Crime Victims

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.

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.

Conclusive (or irrebuttable) presumption

Rules of law that happen to use the language of presumption

Judicial sale:

Sale under the supervision of a court

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.

Decedent

Someone who has died.

POWER TO TRANSFER - Bars to Succession Elder Abuse

Someone who is convicted of financial exploitation, abuse, or neglect of a person under her care is prohibited from inheriting from that person.

Regulation of Unprotected and Less Protected Expression Incitement

Speech is not protected if it is an incitement to immediate violence.

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

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.

Codicils

Supplements a will; does not replace the underlying will • A codicil must be executed with the same formalities as a will. Formal codicils must be signed, witnessed, etc. Holographic codicils must be in writing. • A formal will can be amended by holographic codicil, just as a holographic will can be amended by an attested codicil.

What are the three big powers of Congress?

Taxing, spending, and commerce.

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

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.

Defense Counsel - Effective Assistance

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

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.

WILL CONTESTS Fraud

The contestant bears the burden of showing that the beneficiary engaged in an unlawful misrepresentation at the time of the conveyance. 1. Elements 2. Kinds of Fraud 3. Remedy

WILL CONTESTS General Testamentary Capacity - Insane Delusion | Causation

The contestant must show that the insane delusion was a but for cause of the testamentary disposition.

Deed Execution - Signature What if the signature is forged?

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

Construction (Interpretation) - Ademption Ademption by extinction | Traditional

The devise is extinct and the devisee takes nothing. • Often called the identity theory

Easement Appurtenant

The easement is tied to the use of the land.

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.

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

Common Non-Hearsay Uses - Verbal Acts or Legally Operative Facts

The statement is offered to prove that the statement was made (verbal conduct)

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

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

Private Express Trusts - Trust Res

There is no trust unless there is some piece of property in it. Empty trust: A trust without property

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.

Lien States (Majority)

Treats a mortgage as a lien that does not severe a joint tenancy

Mandatory Trust

Trustee must make distributions from the trust

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.

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

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

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.

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

Civil cases

Usually, the standard is a preponderance of the evidence.

Private Express Trusts - Trust Purpose

Valid if not illegal or contrary to public policy

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.

Can extrinsic evidece be admitted to clarify an ambiguous description in a deed?

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.

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.

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

"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.

Slander

a statement that is spoken

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)

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.

Defenses "IT" | Consent

a. Express consent b. Implied consent c. Capacity

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

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

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

Trustee's Duties - Duty of Loyalty Conflicts of interest

are non-self-dealing transactions that may still breach the duty of loyalty. • Assessed under reasonable & good faith test

Consumer goods

are those goods acquired primarily for personal, family, or household purposes

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

bar to recovery

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.

Revocable trust

can be revoked at any time during settlor's life

Testate

decedent dies with a will

Intestate

decedent dies without a will

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" IIED - Causation

defendant's actions must be a cause in fact of the plaintiff's harm.

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

Defamatory Constitutional Requirements Types of plaintiffs - Private individuals

dont count as public

A foreclosure is a ______________________________ sale of an asset to pay off a debt.

forced sale

"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

Negligent Misrepresentation Defenses

negligence defenses can raised

"IT" Trespass to Land Damages

no proof of actual damages is 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.

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.

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.

"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

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.

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

Negligence: Vicarious Liability

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

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).

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.

LL & Tenant | Tenancy at Will

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

Easement Termination - Release

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

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).

"IT" Battery - Consent Defense

—there is no battery if there is express or implied consent.

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.

WILL CONTESTS Fraud Remedy

• A constructive trust is the most common remedy for fraud • Undue influence and fraud require an act by some third party, while insane delusion arises in the mind of the testator.

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.

Formal Wills Writing Signed by Testator | Form of Signature

• A formal signature is not required. • The signature must indicate testator's desire to sign.

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.

"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

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.

Holographic Wills

• An informal, handwritten will; • Need not be witnessed; • To be valid, must be signed;

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.

Rule Against Perpetuities

• Applies to trusts • "Wait and see" approach: Wait until an interest vests to determine its validity

Charitable Trusts - Standing

• Attorney General's office has standing to enforce the terms of a charitable trust • Uniform Trust Code: Settlor also has standing

Erie Doctrine | Federal Common Law Examples where federal common law applies

• Boundary disputes between states • Claim preclusion • Borrowing of state rule

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

"IT" Conversion Intent

• Defendant must only intend to commit act that interferes. • Mistake of law or fact not a defense.

Mandatory Disclosures

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

Per Capita at each Generation (UPC!)

• Divide property into equal shares at the first generation where there is a surviving member. • Instead of passing a deceased member's share by representation, however, this method pools the remaining shares after each generation. • Pooled shares are divided equally at the next generation.

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.

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

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.

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:

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

Future Interests - Fee Simple Interests Fee Simple Absolute

• Largest estate because it can last forevver; • No future interest

Holographic Wills - Intent

• Look for words or phrases that suggest intent. • UPC expressly authorizes looking to extrinsic evidence to establish intent • If you see a person handwriting something about their property, go into a holographic analysis. Intent is very important.

Negating Mens Rea

• Mistake • Strict Liability • General Intent • Specific intent

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

Express Trusts

• Owner expressly indicates the intent to create a trust. • May be private or charitable.

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

Larceny Elements

• Property • Taking • Trespassory taking (without consent) • Intent

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

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.

Construction (Interpretation) - Abatement Types of testamentary gifts

• Specific gift: A gift of a particular piece of property • General gift: A gift of property satisfied from general assests of estate • Demonstrative gift: A general gift from a particular source • Residuary gift: Left over

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

The Double Jeopardy Clause

• The Blockburger test • Two warnings about the same offense test

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.

Answer

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

Products Liability - Warranties

• Warranty claims may generally be brought up and down the distribution chain. • Privity is not required.

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.

Affirmative Duty to Act - By relationship

• defendant has a special relationship with the plaintiff

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).

Ambiguities Traditional Rule

• patent ambiguities had to be resolved without looking to extrinsic evidence; • Extrinsic evidence was admissible to resolve latent ambiguities.

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.

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

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.

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.

"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.**

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).

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

Death penalty requires procedural due process

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

Direct evidence

Equivalent to what it is offered to prove (e.g., eyewitness testimony)

Effects of Foreclosure - Mortgagor

Foreclosure eliminates the mortgagor's interest in the property

Does a counterclaim in a diversity action have to meet the jurisdictional minimum of $75,000.01?

Generally, no, if the counterclaim is compulsory.

Covenant of warranty

Grantor promises to defend against future claims of title by a third 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

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.

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

Other Improper Questions Argumentative questions

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

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.

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.

Trustee's Duties - Duty of Loyalty

Objective standard: Did the trustee act reasonable? • Self-dealing is a breach of the duty of loyalty • Governed by the no further inquiry rule - If you have established self-dealing, the court does NOT inquire into the reasonableness or good faith • Always a per se breach of duty of loyalty • Even if the trust documents allow self-dealing, the transaction must still be reasonable and fair for the trustee to avoid liability.

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.

Settlor

Person who creates trust

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

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

Sucker looking to get stuck with a money pit

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)

Mortgagor

The borrower

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.

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.**

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).

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.

Tangible Evidence | Oral Statements

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

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

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

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

"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.

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.

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.

"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

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.

"IT" Battery - Harmful Contact Harmful or Offensive Contact

causes an injury, pain, or illness

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.

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Timeliness - Ripeness

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

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

Is There a Duty? Categories of plaintiff - Crime Victims

considered foreseeable plaintiffs in certain circumstances

Defamatory Constitutional Requirements

constitutional limitations will depend on the type of plaintiff and the content of the statement - Type of plaintiff - public concern?

Negligence: Breach of Duty — Statutes Violation by plaintiff

counts as comparative or contributory negligence

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

"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

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

Products Liability - Strict Products Liability Defenses | Disclaimers, limitations, and waivers

generally it doesn't bar strict liability claims for defective products

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.

Miranda Warnings - Interrogators

must ask whether the defendant understand the rights • I.e., Defendant understands English, can hear, and actually heard what was said

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.

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.

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**

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.

Land Sale K's Formation - Two Stages

o First: Contract stage (where parties negotiate terms) o Then: Deed stage (where parties transfer property)

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

A subsequent purchaser who bought the property without notice of the prior purchase, provided that the subsequent purchaser records first

race-Notice Stautes

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

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.

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

use of force is no longer permitted; only legal process

"IT" Trespass to Land Rightful Plaintiff

—anyone in possession can bring an action, not just the owner.

Who qualifies as a spouse?

• A legally-married partner • Excludes: Unmarried cohabitants

Trustee's Duties

• A trustee has two primary duties: a duty of loyalty and a duty of care. • Designed to ensure the trustee acts in the best interests of the beneficiaries • Any beneficiary has standing to enforce these duties.

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

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

Probate Creditors Non-claim statute

• Bars a creditor from making a claim on the decedent's estate after a certain time period has elapsed • If a claim is not brought within that window, the claim is barred. • The exact timeline is based on the statute.

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.

Burglary CL

• Breaking and • Entering • The property • Of another • At night • With the specific intent to commit a felony once inside

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)

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

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.

Revoke a Will - Subsequent Instrument

• Express revocation • Implied revocation (i.e., inconsistency)

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.

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.

Identification Procedures Admissibility

• Lineup evidence at trial • In-court identification

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

Intentional Interference with a Contract Nature of the contract

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

Special Pleading

• No particular form of words • Alleged with particularity/specificity/detail

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

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.

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.

Creation of Express Trusts - Inter vivos transfer Deed of trust

• Settlor conveys property to a trustee; • Settlor is not the trustee.

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

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.

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?

Formal Wills Failure to Satisfy Formalities Modern View (UPC and minority rule)

• Substantial compliance with statutory formalities • Even if formality is not met, a court will nevertheless admit a will to probate if there is clear and convincing evidence that the decedent intended the document to serve as his will.

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.

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

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.

THE EXECUTIVE POWER AND INTERBRANCH RELATIONS

• The Powers of the President—Domestic • The Powers of the President—Foreign Affairs • Interbranch Relations

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.

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

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**

Power of Appointment - Special

• The donor can specify certain individuals or groups as the objects of the power. • In doing so, the donor limits the donee's power.

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.

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).

Construction (Interpretation) - Ademption Ademption by Satisfaction Requirements

• The testator must intend for the gift to adeem; and • Intent must be supported by a writing.

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

POWER TO TRANSFER

• This section concerns limits on the testator's power to transfer property. • Three situations: 1. Rights of the testator's spouse; 2. Gifts to the testator's children; 3. Bars to succession: slayer statutes and disclaimer.

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

Trustee's Duties - Duty of Care Special Skills | Investments Old Rule

• Trustees were limited to specific list of acceptable investments. • A trustee breached by making investments outside the list.

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?

Special Issue 3: Revival Republication

• UPC (majority rule) does not recognize automatic revival of a revoked will. • Full disclosure: This rule can get a little picky. Refer to the Wills outline if you want the itty, bitty, picky details.

Private Express Trusts - Beneficiaries Exception

• Unborn children • Class gifts - Class must be definite • Charitable Trusts

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

Methods of Proving Character

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

Three formal execution requirements

• Writing Signed by Testator; • Witnesses (Attestation); and • Testamentary Intent.

Burglary - "dwelling"

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

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).

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.

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.**

Negligence: Damages

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

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

"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.

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

Injunction Notice Issues Ways to stop behaviors

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

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)

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.

The determination of priority involves two steps:

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

Negligence: Breach of Duty —Specific Rules

1. Custom 2. Statutes

Equitable Servitudes Three types

1. Owners' Associations 2. Condominiums 3. Cooperatives

Calculating the Issue's Share

1. Per Stirpes 2. Per Capita with Representation 3. Per Capita at each Generation (UPC!)

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.

State Regulation and Taxation of Commerce

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

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

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

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

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

Codicil

A Supplement that either amends or revokes a decedent's will in whole or in part.

Prohibited Legislation - Bill of Attainder

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

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

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).

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.

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.

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.

Will Substitutes (Non-Probate Transfers)

A decedent can avoid probate by transferring property via a will substitute, including: • Joint Tenancy • Revocable Trust • Pour-Over Will: • POD Contract • Deed

Intestate Succession

A default estate plan, developed by the legislature, for distributing property when the decedent dies intestate.

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.

Character Evidence - Criminal Evidence Defendant's good character

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

Competence Judge as Witness

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

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-advances mortgages

A line of credit;

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).

POWER TO TRANSFER - Gifts to Testator's Children Omitted Children Intentional disinheritance

A parent can intentionally disinherit his children.

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.

Accomplices Exception

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

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.

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.

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.

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

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.

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

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!

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.

Interbranch Relations - Immunities Judges

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

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.

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.

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.)

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.

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.

Deed Execution - Signature

As a general matter, the grantor's signature is required for execution to be effective.

The Double Jeopardy Clause - The Blockburger test

Ask whether each statutory provision requires proof of an element that the other does not.

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.

Necessity

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

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

No such thing as a " ____________________________" crime

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

Implied Easements Four Kinds

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

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Timeliness

(Ripeness and Mootness)

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

Recordig Acts - Constructive Notice

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

Power of sale

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

Trustee's Duties - Duty of Care Special Skills | Administrative Duties

1. Duty to Inform Beneficiaries 2. Duty to Account

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"

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.

Conspiracy - Modern conspiracy statutes

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

Burglary - Of another

Cannot burglarize yourself

Products Liability - Warranties Defenses - Disclaimers

Disclaimers are covered in the Contracts materials.

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.

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.

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.

Termination - Material purpose

If the trust has been satisfied, the trust automatically terminates.

Express Easements Scope "Trespass"

If the use exceeds the scope, the dominant tenant is trespass on the servient estate.

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.

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.

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.

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

Negligence - Standard of Care | Mental and emotional characteristics

Objective standard—defendant is presumed to have average mental abilities and knowledge

Rape - Intent

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

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.

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.

Fourth Amendment Questions to Ask:

Was there a search? Was there a seizure? If yes, was there probable cause?

Defenses "IT" | Privilege of Arrest - Private citizen Is it a defense to make a reasonable mistake as to the identity of the felony?

YES

"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

Takings: Just Compensation

fair market value at the time of the taking

WILL CONTESTS Undue Influence

• A coerced relationship • The contestant alleges that a 3rd party effectively controlled the testator's decision-making process.

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

Construction (Interpretation) - Ademption

• Ademption by extinction • Ademption by satisfaction

Tangible Evidence | Documentary Evidence—Ways to Authenticate

• By witness testimony of the parties • Eyewitness testimony combined with distinctive features

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

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

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.

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).

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

Trustee's Duties - Duty of Care Special Skills | Duty of impartiality Old Rule

• Life beneficiary entitled to income; • Remainder holder entitled to principal.

WILL CONTESTS

• Objections to the validity of a will • Only an interested party has standing to challenge a will. • Interested party is someone who would: - Receive a financial benefit under the will; or - Take under intestate succession but does not take under the will. • Interested party must file a contest claim within 6 months after the will is admitted to probate.

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

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.

Formal Wills Witnesses (Attestation)

• Presence • Interested witnesses

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.

"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.

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").

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.

Creation of Express Trusts - Inter vivos transfer Declaration of trust

• Settlor declares herself holder of the property in trust for beneficiaries; • Settlor also serves as trustee.

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).

Probate Duties owed by Personal Representative

• The personal representative is a fiduciary, owing duties of loyalty and care. • The personal representative cannot engage in self-dealing.

Impeachment Sensory Competence

• The witness is mistaken in some way. • The witness did not see or hear things as well as she thinks.

Battery

• Unlawful • Application of force • To another person • That causes: - Bodily harm OR - An offensive touching

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.

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

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.

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

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

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"

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

Three ways a product may be defective

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

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.

Three types of suits

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

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.

"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.

Ask three questions

(1) Who is entitled to possession now? (2) Who has the future interest? (3) When, if ever, will the future interest vest?

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.

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)

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.

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

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

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?

"IT" Battery - Intent

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

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

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

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

Default | Application of the Proceeds From a Disposition

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

Termination

1) Expiration 2) Material purpose 3) Unfulfilled material purpose doctrine 4) Settlor's power

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

Probate Checklist

1) Identify property as probate or non-probate. • Non-probate property: Figure out who takes it • Everything else is probate property; it will pass either by testate or intestate succession 2) Is there a will? If so, is it valid? Who are the intended beneficiaries? • Remember: Any property not specifically devised will pass by intestate succession. 3) No will: All property will pass by intestate succession

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

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.

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

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

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

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.

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.

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**

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).

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.

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

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

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

Common-Law Murder Four Kinds of Malice

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

Negligence: Causation Cause in Fact

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

Negligence: Compensatory Damages

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

Nature of Wills |

1. Ambulatory: Wills can be altered or revoked at any time up until the testator's death. 2. A will can be revoked in or in part.

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

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.

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

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

Equitable Servitudes Governance

1. Declaration 2. Powers

Alternatives to Mortgages—Equitable Mortgages

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

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.

Termination Without Trial

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

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

Future Interests - Fee Simple Interests

1. Fee Simple Absolute 2. Defeasible Fee 3. Life Estate

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

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

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.

Other Documents

1. Holographic Wills 2. Codicils

Real Covenants | Two Kinds of Privity

1. Horizontal 2. Vertical

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."

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

Creation of Express Trusts

1. Inter vivos transfer 2. Testamentary transfer

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.

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

Types of Trust Distributions

1. Mandatory Trusts 2. Discretionary Trusts 3. Support Trusts

Pre-Foreclosure Rights and Duties

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

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

Construction (Interpretation)

1. Plain Meaning Doctrine 2. Incorporation by Reference 3. Acts of Independent Significance 4. Lapses and the Anti-Lapse Statute 5. Abatement 6. Ademption

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.

"IT" Nuisance

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

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.

Future Interests of Transferees

1. Remainder 2. Executory Interest

Special Issue 3: Revival

1. Republication 2. Dependent Relative Revocation (DRR)

Land Use - Water Rights Basic Approaches

1. Riparian Rights 2. Prior Appropriation

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"

Recordig Acts Special Rules

1. Shelter Rule 2. Estoppel by Deed

POWER TO TRANSFER - Bars to Succession

1. Slayer Rule 2. Disclaimer 3. Elder Abuse

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-

Three Ways to Revoke a Will

1. Subsequent Instrument 2. Physical Act 3. Operation of Law

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

Land Sale K's Formation

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

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

Common Non-Hearsay Uses

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

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.

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).

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 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

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.

POWER TO TRANSFER - Gifts to Testator's Children Advancements - UPC

A gift is an advancement only if: • The decedent declared in a contemporaneous writing that the gift was an advancement (or the heir acknowledged as such in writing); or • A writing indicates that the gift should be taken into account in computing the division of property of the decedent's estate.

You must be able to distinguish between a codicil and a new will

A helpful way to do this is to look for a residuary gift: • Original will has a residuary gift and later writing does not = later writing is probably a codcil. • Original will does not have a residuary gift and later writing does = later writing probably a new will

Revoke a Will - Subsequent Instrument Express revocation

A later writing expressly revokes a prior will.

Burden of production

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

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.

Subornation of Perjury

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

Purchase money mortgage

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

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.

Future Interests - Life Estate

A present possessory estate that ends at the death of the life tenant

Other Improper Questions Compound questions

A question that asks for several answers

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.

Restraints on Alienation

A restriction on transferring property

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.

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.

What is a mortgage?

A security device used to secure payment of a debt

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.

POWER TO TRANSFER - Rights of the Surviving Spouse

A surviving spouse is entitled to a number of means of support: • Social security and pension plans; • Homestead exemption; • Personal property set asides; • Family allowance for reasonable living expenses during probate; and • Elective share or Waiver

Construction (Interpretation) - Acts of Independent Significance

A testator can dispose of property based on some act or event that is unrelated to the execution of the will. • This doctrine applies to acts that occur in the future (i.e., after the execution of the will). That makes it different from both incorporation by reference and republication by codicil.

Formal Wills Competency

A testator must be at least 18 years old and of sound mind. • Competency is measured at the time of the signing. Subsequent incompetence will NOT invalidate a will.

Special Issue 1: Third-Party Revocation

A third party can revoke on behalf of a testator if: • At the testator's direction; and • In the testator's conscious presenece.

Formal Wills Witnesses (Attestation) | Interested witnesses UPC

Abolished the interested witness doctrine • What does this mean? UPC reasons that this purge business is too difficult and it risks trapping innocent interested witnesses. • So what do you do if there is funny business? There are other ways of going after a problematic witness (e.g., undue influence or fraud).

Amount in Controversy (AIC) - Aggregation

Adding up smaller claims to exceed $75,000

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.

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

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.

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.

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).

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.

"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.

Hearsay

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

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).

Construction (Interpretation) - Ademption Ademption by Satisfaction

Applies when a testator satisfies a specific or demonstrative gift, either in whole or in part, by an inter vivos transfer

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.

POD Contract

Avoids probate because it distributes by an inter vivos transfer transfer;

Pour-Over Will

Avoids probate because it distributes property under a trust;

Joint Tenancy

Avoids probate because it has a right of suvivorship;

Deed

Avoids probate because it is an inter vivos transfer.

Revocable Trust

Avoids probate because it is an inter vivos transfer;

WILL CONTESTS Testamentary Capacity

Basic Rule: To execute a will, a testator must be: • Of age (at least 18 years old); and • Of sound mind.

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

WILL CONTESTS Fraud - Elements

Beneficiary made misrepresentation with • The intent to deceive the testator; and • The purpose of influencing the testamentary disposition.

Remember: An easement binds ______________________________, whereas a license only binds the ______________________________.

Binds successor; binds licensor

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.

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

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

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.

Termination - Unfulfilled material purpose doctrine

Claflin Doctrine • Say the settlor is no longer alive. The beneficiary wants to terminate the trust prematurely and the trustee opposes termination. • Rule: A trustee can block premature termination if the trust is still serving some material purpose. - Discretionary trusts; - support trusts; - Age-dependent trusts (e.g., example immediately above).

Equal Protection - Suspect Classifications Continued Citizenship status

Classifications based upon U.S. citizenship are generally suspect classifications that require a compelling interest

Principal vs. Income Old Rule

Classified income and principal based on nature of money • The life beneficiary was entitled to principal. • The holder of the remainder interest was entitled to the trust principal.

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

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

Battery Elements - unlawful

Consent is a complete defense to battery (e.g., boxing match).

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

"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.

"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.

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.

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.

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

Powers of Attorney General

Covers all affairs during a person's period of incapacitation.

Creation of Express Trusts - Testamentary transfer

Created according to the terms of a will

Creation of Express Trusts - Inter vivos transfer

Created during settlor's in one of the following ways: 1. Declaration of trust 2. Deed of trust

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.

Issue/Descendants

Decedent's lineal line (i.e., decedent's kids, their kids, etc.)

Collaterals

Decedent's relatives through an ancestor (i.e., siblings, cousins, aunts, uncles)

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

"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)

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).

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.

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.

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

Formal Wills Witnesses (Attestation) | Interested witnesses Purge Theory Exception

Do not purge gain if: • There were two other disinterested witnesses; OR • Interested witness would take a share under intestate succession AND interested witness takes the lesser of intestate share or bequest.

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.

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.

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.

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

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

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

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)

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.

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

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).

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

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.

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.

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

Class Gifts and Similar Terms UPC

Future interests under a trust are contingent on the beneficiary surviving until the distribution.

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.

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.

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.

Attachment

Generally, a security interest that is enforceable against the debtor with respect to the collateral is said to have "attached" to the collateral

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

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.

Asset Protection Trusts

Goal is to shield beneficiaries from creditor claims 1. Support Trust 2. Discretionary Trust 3. Spendthrift Trust

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

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 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.

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

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.

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.

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.

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

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.

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? Unperfected security interest versus unperfected security interest

If neither interest is perfected, then the first party to have attached their interest has priority.

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.

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.

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

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

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.

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

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.

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

Without Heirs

If the decedent dies without heirs, the property will escheat to the state.

"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

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.

Construction (Interpretation) - Abatement

If the estate does not have sufficient funds to pay debts or make gifts, the gifts will be abated, or reduced, in a specific order.

The Exclusionary Rule 5½ Exceptions - Inevitable discovery

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

Choosing a Personal Representative

If the will does not name a personal representative. Who can serve? The following priority applies: • A surviving spouse who is a devisee; • Other surviving devisee; • Surviving spouse (if not a devisee); • Other heirs of the decedent; • 45 days after decedent's death, any creditor.

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

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.

General Rule under Erie

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

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."

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.

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.

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.

Irrevocable trust | Uniform Trust Code (UTC)

In most jurisdictions, a trust is presumed to be revocable unless it expressly states that it is irrevocable. If this issue arises in an essay question, unless the question explicitly directs you to apply either the majority or UTC rule, you should mention both presumptions in your rule statement, but apply the majority rule in your analysis.

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

Junior interests

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

Senior interests:

Interests acquired before the interest that is being foreclosed. They survive 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.

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)

Irrevocable trust

Irrevocable trust cannot be revoked

Remedial Trust

Is a remedy created by operation of law • Often called a "passive trust" • Trustee only has one power - to transfer the property

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.

Substantive Due Process Fundamental Rights Privacy - Contraception

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

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.

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.

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

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.

Probate

Judicial process for administering and settling a decedent's estate.

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.

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.

Powers of Attorney Special

Limits the authority to specific subject matters (i.e., resolving a particular business deal)

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.

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.

Ambiguities Modern Rule

Most courts allow both ambiguities to be resolved with extrinsic evidence.

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" | Self-Defense - Initial aggressor

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

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.

Battery Elements - Application of force

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

JUDICIAL POWER: CONCEPTS OF JUSTICIABILITY Standing to Sue

Need three things to sue: 1. Injury 2. Causation 3. Redressability

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.

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 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

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.

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)

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

Principal

Original trust property and any increase in value

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

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.

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.

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).

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

Private Express Trusts - Trust Res Exception

Pour-over trust • Trust terms must be in writing at time will is executed • Property need not be in trust at time of will

Personal Jurisdiction

Power of the court to decide the rights and liabilities of the power of this defendant

Subject-Matter Jurisdiction

Power of the court to decide this type of case

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.

Trustee's Duties - Duty of Care Special Skills | Delegation Modern Law

Premit delegation • If it would be unreasonable for settlor to expect trustee to undertake such functions (e.g., investment decisions) • Trustee then has a duty to oversee.

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.

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.

Character Evidence - Impeachment

Propensity argument can be made to impeach (e.g., the witness is a liar)

Owners' Associations

Property owners belong + pay dues to an association or board

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).

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.

Trustee's Duties - Duty of Care Special Skills | Investments Modern Rule

Prudent Investor Rule • A trustee has discretion to invest and manage property as would a prudent investor. • Trustee is expected to diversiy assets to spread the risk of around. • Portfolio Approach: Measure the success of the portfolio as a whole

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).

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.

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.

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).

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.

Future Interests of Transferees Vested Remainder

Remainderman is ascertained and there is not a condition precedent.

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.

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

Easement

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

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)

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

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

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.

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.

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).

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.

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.

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.

Unlike quiet enjoyment and constructive eviction, IWH does not require the tenant to?

Stay on the premises

Formal Wills Failure to Satisfy Formalities CL MJ

Strict compliance with will formation formalities

Substantive Due Process Fundamental Rights Privacy - Marriage

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

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

POWER TO TRANSFER - Rights of the Surviving Spouse Waiver

Surviving spouse can waive the right to an elective share, if: • The waiver is in writing after a fair disclosure of its contents; and • The spouse is represented by indepenednt legal counsel.

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.

Construction (Interpretation) - Ademption Ademption by extinction | UPC

Takes a different approach, the intent theory • Look to the testator's intent at time she disposed of the property. • Look for facts that suggest the testator intended the ademption. • UPC tries to avoid ademption. The UPC provides for the beneficiary to take replacement property on a specific gift.

LL & Tenant | tenancies is a writing required to create the tenancy?

Tenancy for a term of more than one year

Equitable Servitudes Termination

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

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.

Formal Wills Present Testamentary Intent

Testator must have the present intent to make a testamentary transfer.

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

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

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.

Intestacy Special Case: Simultaneous Death

The Uniform Probate Code ("UPC") follows the Uniform Simultaneous Death Act ("USDA") to control the situation where the decedent and heir die at the same time. If there is insufficient evidence to determine who survived whom, the property will pass as though each had predeceased the other. Under the USDA, an heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours.

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

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.

What if the seller breaches but acted in good faith?

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

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").

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

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.

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).

"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.

False Pretenses: Another Variation of Larceny

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

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

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

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.

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

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.

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.

Asset Protection Trusts Spendthrift Trust - Exceptions

The following creditors can reach trust property: • Spousal or child support; • Those providing basic necessity to the beneficiary; • Holders of federal or state tax liens.

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.**

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 **

Affirmative Easement

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

Negative Easement

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

Unreasonable

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

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

Mortgagee:

The lender

Title theory state

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

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.

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.

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.

WILL CONTESTS General Testamentary Capacity

The person challenging the will ("the contestant") bears the burden of proving that the testator lacked the requisite mental capacity at the time of the execute of the will — "The When Question".

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.

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.

Real Covenant Remedy

The remedy for a breach of a real covenant is damages only

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 - Junior Interests

The rights of junior interests are generally destroyed.

Effects of Foreclosure - Senior Interest

The rights of senior interests are generally not affected by the foreclosure sale.

Value Given

The secured party must give value for the security interest.

Installment Land Contract

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

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.

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).

Future Interests of Transferees Contingent

The taker is either unascertained or is subject to a condition precedent.

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.

POWER TO TRANSFER - Gifts to Testator's Children Omitted Children Unintentional disinheritance

The testator has a child after executing a will and dies without amending the will. • If the testator had no other children when the will was executed, then omitted child takes her intestate share. • If the testator had at least one child at the execution of the will, and the will devised property to at least one of those children, then the omitted child takes an equal share from the portion of the property already devised to the other child.

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

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

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

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

Parties

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

Products Liability - Strict Products Liability

There are three types of product defects: manufacturing defects, design defects, and failure to warn.

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.

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.

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.

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

Time of Disposition

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

Private Express Trusts - Beneficiaries

There must be an ascertained beneficiary • Either a specific person or some criteria to determine who the person is

Hearsay Exceptions - Declarant's Availability Immaterial

These exceptions do NOT require that the declarant be unavailable.

The Taxing and Spending Power

Think of these as separate powers even though they are lumped together in one clause.

Trustee's Duties - Duty of Care

This category of trustee duties may also be referred to as duties of prudence. • Subjective std: Did the trustee act in good faith? • The care that a person of ordinary prudence would practice in the care of his own estate • A trustee should treat the trust property as his own.

Speech by Government Employees - Exception

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

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.

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.)

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.

Irrevocable trust | traditional rule

Traditionally, and today in a minority of jurisdictions, a trust is presumed to be irrevocable.

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.**

"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.

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

Trustee's Duties - Duty of Care Special Skills | Duty of impartiality

Trustee has a duty to balance the competing interests of present and future beneficiaries.

Discretionary Trusts

Trustee has complete discretion as to whether she will make a distribution • "Trustee to make payments for the health and care of beneficiary" • "Trustee to make payments, in her discretion, for the education of the beneficiary"

Mandatory Trusts

Trustee has no discretion as to whether he will make a distribution • "Trustee to pay all income" • "Trustee to distribute $1,000 every month" • "Trustee to distribute law school tuition for the next three years"

Support Trusts

Trustee makes distributions to support the beneficiary • "Trustee to make distributions for the support of the beneficiary"

Discretionary Trust

Trustee may make distributions in her discretion

Trustee's Duties - Duty of Care Special Skills | Delegation CL

Trustee never delegate authority

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.

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

Alienability of Trust Property and Creditors' Ability to Reach

Two basic rules: Rule 1: A beneficiary's equitable interest in trust property is freely alienable. • Exception: Trust instrument or a statute limits this right • Creditors can reach the beneficiary's payment interest Rule 2: A creditor cannot reach trust principal or income until such amounts become payable to the beneficiary or the beneficiary can demand it.

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).

Land Use - Nonconforming Uses

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

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.

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.

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 seisin

Warrants that the deed describes the land in question;

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?

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?

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

We're concerned about subsequent purchasers.

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.

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.

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

Searches Incident to Arrest Inventory search

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

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:

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.

Private Express Trusts - Intent Exceptions

When trust must be in writing: • Statute of Frauds (i.e., conveying real property) • A devise (i.e., trust created in a will) • Property is not transferred by the will, but rather by the trust • Trust must be in existence at the time the will was made or created simultaneously • Trust avoids probate Minority: A valid trust must be in writing

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)

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.

Formal Wills Witnesses (Attestation) | Presence UPC

Witnesses must sign within a reasonable time of the original signature by the testator. This means that the signatures do not have to be in the presence of witnesses or testator. Great example of how UPC makes it easier to execute a will.

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").

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

Yes

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.

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

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

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.

"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.

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

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."

Affirmative Duty to Act - By authority

a person with the ability and actual authority to control another has a duty to exercise reasonable control.

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

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.

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.

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.

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.

Invasion of Privacy Defenses - Qualified and absolute privilege

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

Invasion of Privacy Defenses - Consent

applicable to invasion of privacy torts

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.

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.

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.

Modification - settlor is dead

can generally modify in one of two situations: 1) all beneficiaries agree to a modification consistent with material purpose of trust; or 2) An unforeseen event has frustrated purpose of trust (i.e., equitable deviation) If you see a fact pattern involving unforeseen events on the exam, be very clear about what the purpose of the trust is. A trustee cannot terminate or modify a trust through unilateral action.

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.

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

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).

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)

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.

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

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).

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.

Negligence: Breach of Duty — Compliance with a statute

generally does not constitute reasonable care; does not mean the person was NOT negligent

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.

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.

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

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

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).

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.)

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

includes anything connected to the plaintiff's person

"IT" Trespass to Land Physical Invasion

includes causing objects to invade the land & walking on the land

"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.

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.

Larceny Elements - Taking

involves any movement of property, however slight

Burglary - Entering

involves breaking the plane of the dwelling

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

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

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.

Specific In Personam Jurisdiction - In Rem Jurisdiction The res

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

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

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

Defenses "IT" | Defense of Others

may use reasonable force in defense of others, if the others would be entitled to use self-defense

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

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.

Hearsay Exception - Declarant Unavailable Threshold requirement

must show the declarant is unavailable to testify as a witness

Negligence: Breach of Duty — Custom Physicians Modern Trend

national standard

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

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)

"IT" Assault - Bodily Contact

not required

Probate Creditors The personal representative must provide ______________________________ to the creditors of the estate

notice

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

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.

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).

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

Land Use - Private nuisance

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

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.

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.

"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.

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

"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.

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.

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.

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.

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

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.

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.

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**

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 - 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.

Strict Liability - Animals Wild Animals Dangerous propensity

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

Defenses "IT" | Parental Discipline

parents may use reasonable force as necessary to discipline children

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.

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

Beneficiary

person who receives the benefit of the trust • Holds equitable title to the property • Has power to enforce the trust instrument • Can have multiple classes of beneficiaries

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

personal knowledge

Negligence: Breach of Duty — Custom Physicians Traditional

physician in the "same or similar" locality

"IT" False Imprisonment - Damages

plaintiff can recover nominal damages actual damages are also compensable.

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)

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

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

Private Express Trusts - Intent Watch out for

precatory language • Language that expresses donor's hope or wish that the donee use property in a certain way • Does not create a trust Ambiguous language Distinguishing between a trust and a gift

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.

Criminal cases

reasonable doubt Standard

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

reasonable force permitted

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.

Negligence - Standards of Care for Specific Situation Emergency Situations

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

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

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.

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.

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

Class Gifts and Similar Terms Majority CL

the interest is shared among only those class members alive upon Son's death and the deceased's estate would take nothing.

Intentional Misrepresentation (Fraud) - Causation

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

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.

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.

"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**

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

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 - 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

Products Liability - Warranties Implied warranties | Merchantability

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

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).

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.

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

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.

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.

"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

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

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

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

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

Subsequent Remedial Measures Exception

when evidence of subsequent remedial measures is relevant for some other purpose • E.g., ownership, control, feasibility

"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

Probate - Does the personal representative gets paid from the estate?

yes

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

· Act; · Intent; and · Causation.

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.

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.

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.

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.

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.

"IT" Intent

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

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

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.

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.

Private Express Trusts - Intent

• "Trust words" create a presumption of a trust (e.g., "in trust," "for the benefit of") • Oral trusts are valid.

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.

POWER TO TRANSFER - Bars to Succession Slayer Rule

• A beneficiary who murders the decedent is barred from taking under the decedent's will. • A beneficiary who murders the testator is treated as if he predeceased the testator. • Courts have not applied the Slayer Rule in involuntary manslaughter and self-defense cases. Thus, murder must be intentional and felonious (i.e., we're talking murder). • UPC: Allows the killer's issue to take, when relevant (i.e., anti-lapse statute or intestate succession distribution)

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).

Intestacy

• A default estate plan developed by the legislature. The decedent's actual intent is irrelevant. • Individuals entitled to take an intestate share are called the decedent's heirs. • We are particularly interested in the decedent's spouse and kids.

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.

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.

WILL CONTESTS General Testamentary Capacity - Insane Delusion

• A false belief to which the testator adheres in spite of all reason and evidence to the contrary. • The testator has general capacity, but has an insane delusion as to some belief. • Objective test

Future Interests - Fee Simple Interests Defeasible Fee | Fee simple determinable

• A fee simple for a durational period • "So long as," "while," "during which time" are durational terms. • Possibility of reverter is held by grantor.

Future Interests - Fee Simple Interests Defeasible Fee | Fee simple subject to condition subsequent

• A fee simple that is terminated upon the happening of an event or condition; • "But if" or "on the condition that" denote a condition subsequent. • Right of entry must be elected (go to court and evict); does not happen automatically

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.

Future Interests of Transferees Remainder

• A future interest capable of becoming possessory at the natural termination of the prior estate • Must be held by a transferee Vested & Vested as a class gift (vested subject to open)

Future Interests - Life Estate Reversion

• A future interest held by the grantor following a life estate • Capable of becoming possessory at the natural termination of the grantee's life estate

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

POWER TO TRANSFER - Gifts to Testator's Children Advancements

• A lifetime gift to a child that is treated as satisfying all or part of the child's intestate share. • Operates like ademption by satisfaction (testate), except advancements deal with intestate succession.

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.

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+)

POWER TO TRANSFER - Bars to Succession Disclaimer

• A person may disclaim a testamentary gift. • Timing: Must disclaim within 9 months of the decedent's death

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)

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.

Constructive Trusts

• A remedy used to prevent unjust enrichment if a 3rd party takes advantage of the settlor • Key characteristic: wrongful conduct (e.g., fraud, undue influence)

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.

POWER TO TRANSFER - Rights of the Surviving Spouse Elective Share

• A surviving spouse can elect to take a forced share • The spouse's elective share will change the gifts to other beneficiaries • Amount - The spouse's elective share will change the gifts to other beneficiaries | UPC: Forced share is 50% of the decedent's augmented estate. • Augmented Estate: The UPC subjects property acquired before the marriage, as well as property acquired during the marriage, to the elective share. The elective share under the UPC is broader than a community property share. • Purpose: The law does not want the decedent to disinherit the surviving spouse, particularly when the surviving spouse is the "non-earner."

Revoke a Will - Physical Act

• A testator may also revoke a will in part or in its entirety by engaging in a physical act of destruction, such as tearing, burning, or crossing stuff out. • To revoke a will, the testator must intend for the physical act to revoke the will. Destroying specific language Lost wills

What is a trust?

• A trust is a management device • Key feature: A bifurcated transfer • Trustee owns legal title and manages the property for the benefit of the benficiary.

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

POWER TO TRANSFER - Gifts to Testator's Children Calculating effect of advancement: "Hotchpot" analysis

• Add the value of the advancements back into the intestate estate • Divide the resulting estate by the number of children taking. • Deduct the child's advancement from the child's intestate share

Probate Creditors Seven classes of creditors (from most important to least important)

• Administrative expenses; • Medical and funeral expenses; • Family allowances; • taxes; • Secured claims; • Judgments against the decedent; • All other claims.

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

Manslaughter

• All unlawful killings of another human being that are not firstdegree murder or common law murder • Two types: voluntary and involuntary

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

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)

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.

Trustee's Powers

• Always look to the trust document first. - If the trust documents are silent, then refer to statutory and common-law principles. • Modern trend is to grant the trustee all those powers necessary to act as a reasonably prudent person, including powers to: - Sell or transfer; - Lease trust property; - Pay taxes; - Sever or consolidate trust property. • Trustee owns legal title and can act as owner.

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.

Powers of Attorney

• An authority to act on another's behalf in a legal or business matter • Principal/agent relationship

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.

Executory Interest

• An interest held by the grantee that will divest a prior vested interest (cuts short the prior interest) • Springing: Divests the grantor. • Shifting: Divests a prior grantee.

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 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

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).

POWER TO TRANSFER - Gifts to Testator's Children Advancements - Common Law

• Any lifetime gift is presumed to be an advancement of that child's intestate share. • The child had the burden to show that an item was an outright gift.

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.

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.

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).

Powers of Attorney Advance Health Care Directives - Durable power of attorney for health care

• Appoints an agent in the event the principal becomes incapacitated and is unable to make medical decisions. • Allows the agent to stand in the principal's shoes and make decisions for her.

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

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

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.

Products Liability - Warranties Defenses - Tort Defenses

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

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

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.

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.

Rule Interpleader

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

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

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

POWER TO TRANSFER - Bars to Succession Disclaimer Requirements

• BE 1) In writing, signed, and filed with court; OR 2) Declared to the person in charge of distributing the estate; AND 3) Identify the decedent, describe the interest being disclaimed, and define the extent of the disclaimer.

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.

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

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.

Burglary Modern Law

• Breaking and • Entering • The property • Of another • With the specific intent to commit a felony inside

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

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

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

Special Issue 2: Revoking Codicils

• By revoking a will, the testator also revokes any codicil attached to the will. • But! The opposite is not true. If a testator revokes a codicil, the underlying will is revived in its original form.

POWER TO TRANSFER - Gifts to Testator's Children Two views on advancements:

• CL • UPC

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

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)

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

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.

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).

Modification - Settlor is alive

• Can unilaterally modify, unless the trust is irrevocable • If the trust is irrevocable, settlor can still terminate if all beneficiaries consent • Because trusts are now presumed revocable, a settlor need not expressly reserve the right to terminate the trust

Termination - Settlor's power

• Can unilaterally terminate, unless the trust is irrevocable • If the trust is irrevocable, the settlor can still terminate if all beneficiaries consent Because trusts are now presumed revocable, a settlor need not expressly reserve the right to terminate the trust.

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.

Who Qualifies as Issue? Posthumously Born Children

• Child is conceived before, but is born after, the death of the mother's husband • If the child is born within 280 days of the husband's death, there is a rebuttable presumption that the child is the husband's and the child will inherit from husband as if child was born before the husband died. • If child is born more than 280 days after death, the child will have to prove parentage in order to inherit from the husband. • The Uniform Parentage Act ("UPA") increases the rebuttable presumption period to 300 days.

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.

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

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.

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

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

Construction (Interpretation) - Lapses and the Anti-Lapse Statute

• Common Law: A testamentary gift would lapse (i.e., fail) if an intended beneficiary did not survive the testator. • Failed gifts would be dumped into the residuary gift. • Anti-lapse statutes • Special rules for class gifts

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.

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.

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.

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.

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.

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.

Charitable Trusts - Cys pres docrine

• Court can modify a trust if the trust's charitable purpose is no longer possible. • To modify, you need a general charitable purpose • Goal is to make the new purpose as close as possible to the original purpose • RST and Uniform Trust Code presume a general charitable purpose • If there is no general charitable purpose, the property goes to a resulting trust

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.

Construction (Interpretation) - Plain Meaning Doctrine

• Courts tend to give the words in wills their plain meaning. • We assume the testator meant the plain meaning of what he said, even if the testator meant something else. • Exception: The will states otherwise (e.g., by defining terms).

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

Who Qualifies as Issue? Stepparent Adoption

• Creates a parent/child relationship between the child and stepparent for purposes of inheritance • Adoption will not prevent the adoptee from inheriting from the other genetic parent

LL & Tenant | Lease

• Creates both a K interest and a property interest • Landlord-tenant law is a mix of contract law and property law.

Asset Protection Trusts Discretionary Trust

• Creditors cannot reach trust property, because the beneficiary cannot demand payment. • Creditors can reach when the trustee makes a a payment

Asset Protection Trusts Support Trust

• Creditors cannot reach trust property, because the beneficiary cannot demand payment. • Creditors can reach when the trustee makes a support payment

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")

Special Issue 3: Revival Dependent Relative Revocation (DRR)

• DRR provides a safety valve for testators who revoke a will on the basis of a mistake. • The mistake can be grounded in law or in fact. • DRR invalidates the mistaken revocation and revives the earlier revoked will • If you see revocation based on a mistake, do a DRR analysis. Focus on the idea that but for the mistake, the testator would not have revoked the first will. Buzzwords: "revocation," "mistake," "causation," and "safety valve."

Who Qualifies as Issue?

• Decedent's lineal line (i.e., children, grandchildren, great-grandchildren, etc.) • There must be a parental relationship. • Adoptive children inherit from decedent just like biological children. The adoption works to sever the child's relationship with his/her natural parents.

Non-probate property transfers by an instrument other than a will, such as:

• Deed; • Trust; • Joint tenancy (with right of survivorship); • POD Contrac • Don't forget about intestate succession. If the decedent does not have a will or if the testator's will is invalid, probate property will pass by intestate succession. • If you determine that a will is invalid in whole or in part, do not forget to discuss intestate succession.

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" 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

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.

Power of Appointment

• Describes the ability of the decedent (donor) to select an individual (donee) to dispose of certain property under the will • Power is personal to the donee (only the donee can appoint) • Two Types: General and special

Powers of Attorney Advance Health Care Directives - Living Will

• Dictates the care the individual wants in the event the individual is not able to make those wishes known. • The agent's job is to see that the directive is enforced.

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.

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

Per Capita with Representation

• Divide the property equally at first generation where a member survives the decedent. • If there are deceased members at that first generation, their shares drop down to their surviving issue at the next generation. • If a deceased member of a generation is not survived by living issue, then that member does not take a share.

Per Stirpes

• Divides shares equally according to a decedent's lineal line • Divide shares into the total number of children who survive or leave issue who survive, and then divide by representation • Allows a surviving child to stand in the place of his deceased parent • Issue take in equal shares regardless of whether anyone in that generation survived.

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

Formal Wills Writing Signed by Testator

• Entire will must be written (or typed) and signed by the testator. • The UPC does not permit oral wills. This includes audio and video recordings. • Location of Signature • Capacity: Testator must be at least 18 years of age and of sound mind • Form of Signature

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

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.

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.

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).

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

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 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.

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.

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.

Trustee's Duties - Duty of Care Special Skills | Administrative Duties - Duty to Account

• For actions taken on behalf of the trust • Report on the health of the trust portfolio

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.

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?

WILL CONTESTS Kinds of Fraud

• Fraud in the Inducement: The misrepresentation causes the testator to make a different will than the testator would have otherwise made. • Fraud in the Execution: A misrepresentation as to the character or contents of the will.

Constructive Trusts Look for:

• Fraud; • Duress; • Undue influence; • Breach of a duty; • Detrimental reliance by a third party.

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).

Most modern rape statutes

• Gender-neutral • Require lack of consent rather than the force requirement

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

Removal of a Trustee

• Generally a remedy when the trustee has breached a fiduciary duty or grossly mismanaged the property • Trustee can resign with written notice, if settlor is alive, to co-trustees and beneficiaries

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.

Principal vs. Income Modern Approach

• Governed by the Uniform Principal and Income Act (UPAIA) • Trustee is to focus on the total return of the trust portfolio • Trustee can re-characterize and reallocate items as necessary to fulfill trust purposes • Allocations must be reasonable.

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.

Principal vs. Income

• How should the trustee balance the interests of multiple beneficiaries when their interests are different? 1. Old Rule 2. Modern Approach

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

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

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.

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.

WILL CONTESTS Undue Influence - Burden Shift

• If the contestant meets the burden, it creates a presumption of undue influence. • The burden shifts to the proponent (i.e., the third party) to show by a preponderance of the evidence that there was no undue influence

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: 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

WILL CONTESTS Forfeiture Clauses

• In Terrorem: A no contest clause designed to dissuade a beneficiary from suing about his share. • Rule: Under the UPC, the clause is unenforceable if the beneficiary had probable cause to challenge. • So...if the beneficiary did not have probable cause (i.e., the claim is groundless) the forfeiture clause is enforceable.

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).

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).

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.**

Revoke a Will - Operation of Law

• In most jurisdictions, divorce revokes all will provisions in favor of the former spouse. • Exception: There is evidence that testator wanted the will to survive • The UPC goes a step further, invalidating gifts not just to the exspouse, but to the ex-spouse's relatives as well. • Separation does not affect the rights of a spouse • By contrast, a subsequent marriage does not revoke a will because a surviving spouse is entitled to take an elective share.

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.

Formal Wills Writing Signed by Testator | Location of Signature

• In some states, the signature must be at the end of the document. • In other states (and the UPC), the signature can be located on any part of the will. What is important is whether the testator intended her name to be her signature. • Under the second rule, if the signature is not at the bottom of the document, any words after the signature will not be given effect.

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.

Powers of Attorney - To be valid, it must be

• In writing; • signed; and • dated. Three Types: General, Special, Advance Health Care Directives

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

Principal vs. Income Modern Approach - Factors that trustee must balance

• Intent of settlor and language of trust instrument; • nature, duration, and purpose of trust; • Identities and circumstances of beneficiaries; • Anticipated effect of economic conditions; • Anticipated tax consequences.

POWER TO TRANSFER - Gifts to Testator's Children Omitted Children

• Intentional disinheritance • Unintentional disinheritance

Assault - Fear of Harm

• Intentionally placing another in fear of imminent bodily harm • This form of assault is a general-intent crime.

Construction (Interpretation) - Abatement Abatement hierarchy

• Intestate property (first to be reduced); • Residuary gift; • general gifts; • Specific gifts (last thing to be reduced, most protected) If they can be satisfied, demonstrative legacies are treated as specific gifts. Otherwise, they are treated as general gifts.

Probate Duties Personal Representative

• Inventory and appraise the estate; • Locate and contact interested parties, including creditors; • Satisfy debts, including taxes, burial expenses, and support; • Close the estate.

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.

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.

Revoke a Will - Subsequent Instrument Implied revocation (i.e., inconsistency

• Later writing is inconsistent with prior will(s). • So long as it is validly executed, a later document controls.

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.

Formal Wills Witnesses (Attestation) | Two views of "in the presence"

• Line of sight (Traditional approach) - Witness and testator must observe or have the opportunity to observe the signing of the will. - I.e., they are both in the same room. • Conscious presence (Modern Approach) o Witness or testator must be aware the act is being performed, even if she cannot see it. The UPC adopts Conscious Presence only for the situation where the will is signed by another on behalf of the testator.

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.

Revoke a Will - Physical Act Destroying specific language

• Majority: The particular language in question must be destroyed. • UPC: Only requires that destructive act affect some part of the will.

Kidnapping Malicious Burning Elements

• Malice • Burning • Another Person • Dwelling

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

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

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.

WILL CONTESTS General Testamentary Capacity - Insane Delusion | Objective test

• Measure the testator's insane delusion against the actions of a rational person in the testator's position. • A belief is an insane delusion if the rational person could not have reached the same conclusion.

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 - Mistakes of Law

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

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.

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

Formal Wills Witnesses (Attestation) | Presence

• Most states require that the will be signed in the presence of at least 2 witnesses. • The bar examiners love "presence." It is a highly tested topic. • Witnesses must also sign document, though not necessarily at the same time.

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.

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)

Power of Appointment - General

• No conditions or restrictions on the donee's power • The donee can appoint herself or one of her creditors as the owner of the property. • If the donee fails to exercise the power, the property reverts back to the donor's estate

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

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

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

Remedial Trusts; Creditors' Rights

• Not driven by intent • It is an equitable remedy created by operation of law • Key characteristic: It is passive in nature - Trustee's only duty is to convey the property back to the settlor

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

"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

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.

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?

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

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

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

"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.

Accessories After the Fact

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

Resulting Trusts - Purchase-Money Resulting Trust

• Person One buys the property, but title is taken in Person Two's name • If Person Two is not the natural object of Person One's bounty (i.e., not a close friend or relative), a court will create a purchase-money resulting trust

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

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.

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

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.

Future Interests of Grantor

• Possibility of reverter (associated with fee simple determine) • Right of reentry (associated with fee simple subject to condition subsequent) • Reversion (associated with life estate)

Why Probate

• Primary purpose: Orderly administration of a decedent's estate • Includes: - Protecting and satisfying creditors; - Quieting contested titles, and transferring titles to rightful holder; - Protect testator's interest (e.g., against fraud and undue influence); - Efficiently handling will contests. - If you determine that a will is invalid in whole or in part, do not forget to discuss intestate succession.

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

Probate Filing under UPC

• Probate proceedings must be brought within 3 years of death, after which there is a presumption of intestacy. • A party requesting probate can choose to have it occur through informal (ex parte) or formal probate (notice).

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).

Construction (Interpretation) - Lapses and the Anti-Lapse Statute Anti-lapse statutes Requirements

• Protected relationship - Lapsed gift was intended for a relative of the testator • Survived by issue

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

Construction (Interpretation) - Lapses and the Anti-Lapse Statute Anti-lapse statutes

• Provide an alternative disposition for lapsed gifts. • If these requirements are not met, the common law rule applies and the gift goes to the residuary

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

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

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.

Invasion of Privacy Defenses

• Qualified and absolute privilege • Consent • Truth

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.

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.

Deed

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

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

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.

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

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.

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.

Holographic Wills - How much writing?

• Some jurisdictions: any markings not in the testator's handwriting invalidate the will • UPC: Only requires that material provisions be in the testator's handwriting

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.

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."

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

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.

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

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

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.

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 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.

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

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.

Trustee's Duties - Duty of Care Special Skills | Duty of impartiality Modern Rule

• The allocation between income and principal must be balanced to treat life tenants and remainder holders fairly. • Look at the total return. • Trustee can reallocate as long as it is fulfilling the trust purpose. • Must be reasonable

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.

WILL CONTESTS Undue Influence - Consequences

• The beneficiary is treated as if he predeceased the testator to the extent that the gift is in excess of the beneficiary's intestate share • Like with an insane delusion, causation matters a great deal. The idea is that the suspect beneficiary exerted influence that caused the strange property division.

WILL CONTESTS Undue Influence - Required Proof: The contestant bears the initial burden of showing

• The beneficiary received a initial benefit under the will; • The beneficiary had a confidential relationship with the testator; and • The testator had a weakened intellect at the time of execution The confidential relationship is often professional (i.e., doctor, lawyer, therapist) or familial in nature.

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

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.

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.

The Probate Process

• The first thing you should do in any given estate problem is classify each piece of property as either probate or nonprobate. • Probate property passes by will or intestate succession

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

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.

WILL CONTESTS General Testamentary Capacity - Whether the testator had the ability to know

• The nature of the act — "The Why Question;" • The nature and character of her property — "The What Question;" • The natural objects of his bounty — "The Who Question;" and • The plan of the attempted disposition — "The how Question." • The issue is NOT whether testator actually knew these things; it is whether the testator had the ability to know them.

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.

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

Probate Personal Representative

• The person who acts on behalf of estate during probate process • What do we call this person? - If appointed by the court: personal representative; - If named in the will: executive.

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.

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.

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.

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.

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.

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 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

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.

Future Interests of Transferees Vested as a class gift Remainder

• There is a class of people who are supposed to take; • At least one member of the class has vested - none is vested is contingent • Key question: When does the class close? When grantor dies.

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

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."

Ambiguities Latent and patent

• This is a latent ambiguity. We cannot see it on the face of the will. • This is a patent ambiguity. It appears on the face of the document.

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.

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.

Asset Protection Trusts Spendthrift Trust

• Trust expressly restricts the beneficiary's power to alienate her interest. • Creditors cannot reach trust property until the trustee makes a payment.

Removal likely to be granted

• Trustee became incapable of performing duties (e.g., in jail, incapacitated, seriously ill); • Material breach of a duty; • Trustee develops a conflict of interest; • A serious conflict between a trustee and a beneficiary; • The trust persistently performs poorly as a result of the trustee's action or inaction.

Trustee's Duties - Duty of Care Special Skills

• Trustee must use those special skills • Trustee with special skills is held to a higher standard 1) Delegation 2) Investments 3) Duty of impartiality 4) Administrative Duties

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

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.

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.

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

"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

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).

Resulting Trusts

• Used when a trust fails; • Trustee must return property to settlor or settlor's estate; • Goal is to avoid unjust enrichment. Purchase-Money Resulting Trust vs. Avoiding a Resulting Trust

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

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.

Revoke a Will - Physical Act Lost wills

• We know a will exists, but cannot find it at the testator's death • Creates a rebuttable presumption that the testator revoked the will by physical act • Burden is on the proponent to show will's existence by clear and convincing evidence • Duplicate originals can be admitted; copies cannot be admitted. A duplicate original is another version of the original (signed and attested).

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

Construction (Interpretation) - Incorporation by Reference

• Will refers to a document outside the will itself • A will may incorporate an extrinsic document that is not testamentary in nature, if: - The document is in existence at the time of execution; - The UPC will waive this rule if the document disposes only of personal property. - The testator intends the document to be incorporated into the will; and - The document is descrube in the will with sufficient certainty to permit its identification.

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

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

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)

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.

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.

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