The Bar

Where is venue proper?

(1) Where any defendant resides, if all defendants reside in that same state, OR (2) where a substantial part of the claim arose (more than one district can satisfy this requirement) If neither (1) or (2) are possible, then anywhere where any defendant is subject to personal jurisdiction. *organizations reside where they would have personal jurisdiction

Exceptions to Mootness

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

Aggravated Kidnapping

(1) kidnapping for ransom; (2) kidnapping for the purpose of committing other crimes; (3) kidnapping for offensive purposes; (4) child stealing.

When can a court admit convictions from more than ten years ago?

(1) the conviction's probative value substantially outweighs its prejudicial effect; and (2) the proponent gives the adverse party reasonable written notice of their intent to use it

Five Clearly Substantive Issues for the Erie Doctrine

(Means federal judge must follow state law) Conflict or choice of law rules Elements of a claim or defense Statutes of limitation Tolling of statutes of limitation Standard of granting a new trial because the jury's award was excessive or inadequate

Requirements to Bring Derivative Suit

- Stock ownership when the claim arose and throughout the litigation - Adequate representation of the corporation's interest - Must make a written demand on the board that the corporation bring the suit - Corporation must be joined as a defendant - Can only settle or dismiss with court approval

Slander per se categories

- Trade office or profession - Serious crime - Loathsome disease - Serious sexual offense

Implied Equitable Servitude

- aka Reciprocal Negative Servitude - 2 elements: (1) when the sale began the subdivider 'A' had a general scheme of [restriction], which included B's lot, and (2) B lot-holder had notice of the promises in the prior deeds (imputed notice counts) THEN General scheme of restriction will also apply to B's lot Exception: if some of the lots are sold BEFORE the general scheme arises, NO implied equitable servitude

Garage Sale Rule

- where buyer resells to another consumer (for personal use), second buyer takes free of security interest if buys w/o knowledge and for value and BEFORE a financing statement has been filed

How to terminate actual authority?

-After a specified time or event -After a reasonable time if there is no specified time -By a change of circumstances -By a breach of the agent's fiduciary duty By a unilateral act of either the principal or the agent -By death or incapacity by the principal or agent

Types of records that can be admitted under the public records exception

-Records setting forth the activities of the office or agency -Recordings of matters observed pursuant to a duty imposed by law -In civil actions and against the government in criminal cases, records of factual findings resulting from an investigation authorized by law

What is considered income of a trust?

-Rent that is received on an asset -Interest on trust investments -Cash stock dividend

How to Sever a Joint Tenancy

-Sale of an interest (can be done without the other's knowledge or consent) (buyer becomes tenant in common) -Partition -Mortgage

When are resulting trusts created?

-Settlor intended to create a trust but it was ineffective -Trust provision is larger than necessary and doesn't provide for a remainder -Purchase Money Resulting Trust

When is trust intent satisfied when determining trust validity?

-Settlor splits legal and equitable title -Settlor imposes enforceable duties on the holder of legal title -Trust intent must exist at the time of transfer

Indemnification in Corporations

1. The corporation cannot indemnify the director or officer if they were held liable to the corporation or held to have received an improper benefit 2. Corporation must indemnify the director or officer if they were successful in defending 3. Corporation may indemnify a director or officer if they show they acted in good faith and thought that what she did was in the company's best interest

How is a third-party impleaded into a case?

1. The defendant must file a third-party complaint naming the third party defendant 2. Have the complaint formally served on the third party defendant

Scope of Employment in determining liability for employee torts

1. Was the conduct of the kind the employee was hired to perform? 2. Did the tort occur on the job? 3. Was the conduct undertaken, at least in part, to benefit the principal

Is money expended by a trustee income or principal?

1. ordinary income tax - income 2. capital gains tax - principal 3. ordinary repairs - income 4. extraordinary repairs - principal 5. depreciation - income 6. compensation & accounting expenses - allocated 50/50 7. payment on principal of loan to trust - principal 8. estate taxes - principal

Methods of Perfecting a Security Interest

1. perfection by filing a financing statement 2. perfection by possession of collateral 3. perfection by a purchase money security interest in consumer goods (automatic perfection) 4. perfection by control (must be used to perfect deposit accounts) 5. notation of lien on certificate of title

Exceptions to the reasonable person standard

1. person who has superior skill or knowledge will be held to "hypothetical reasonably prudent person with the same superior skill or knowledge." 2. Physical characteristics of defendant where relevant. Ex: reasonably prudent blind person.

Requirements for Ratification

1. principal has knowledge of all material facts regarding the contract 2. Principal accepts the entire transaction 3. Ratification cannot be used to modify the rights of intervening parties

Duty to Retreat in Self Defense

Generally no duty to retreat before using self defense in majority view. Minority view requires retreat before using deadly force if the victim can safely do so UNLESS attack occurs in the victim's home, attack occurs when the victim is making a lawful arrest, or the assailant is in the process of robbing the victim

What state law applies to premarital agreements?

Generally parties agree what law should apply. If they don't, the state with the most significant connections to the party will apply or where the agreement is executed.

Freedom of the Press

Generally the press has no greater First Amendment freedom than does a private citizen. Generally, the press has a right to publish truthful information regarding a matter of public concern.

If you dissociate from a partnership, are you still liable?

Generally, a dissociated partner remains liable for pre-dissociation partnership obligations. May also be liable for post-dissociation partnership liabilities incurred within two years after the dissociation. You can protect yourself from this by notifying creditors of your dissociation or by filing a public notice of dissociation that takes effect 90 days after filing.

Waiver of Attorney-Client Privilege

Generally, a voluntary disclosure of privileged material operates as a waiver of the attorney-client privilege only with respect to the disclosed material. Undisclosed privileged material is subject to the waiver if (1) the waiver was intentional, (2) the disclosed and undisclosed material concern the same subject matter, and (3) the material should be considered together to avoid unfairness

Effect of a Miranda violation

Generally, evidence obtained in violation of Miranda is inadmissible at trial. but statements may be used to impeach defendant's trial testimony but not used as evidence of guilt. But, if detainee gives police information that leads to nontestimonial evidence, that evidence is only suppressed if the failure to give Miranda warnings was purposeful.

First Restatement Vesting Rule for Torts

Generally, governing law is the law where the injury occurred.

Is decreasing the economic value of property a taking?

Generally, regulations that merely decrease the property do not amount to a taking if they leave an economically viable use for the property. The Court will consider (1) the government interests sought to be promoted; (2) the diminution in value to the owner; and (3) whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.

Stock Transfer Restrictions

Generally, rules favor transferability, but may be restricted in closely held corporations by articles or bylaws to avoid shares sold to new people. Allowed as long as it isn't an absolute restraint on alienation. All restrictions must be noted conspicuously on the stock certificate or else it is not enforceable against good faith transferee without knowledge of restriction.

Covenant of Seisin

Gives the assurance that the grantor has the exact estate in the quantity and quality which is being conveyed.

How to calculate the amount in controversy

Good faith allegation by the plaintiff controls unless it is clear to a legal certainty that 75K+ isn't possible

Implied Warranty of Merchantability

Goods are fit for ordinary, foreseeable purpose. Show a merchant seller, who is regularly selling that type of goods for this to apply.

Accessions

Goods that are physically united with other goods in such a manner that the identity of the original goods is not lost

Affirmative Action

Government action that favors racial or ethnic minorities is also subject to strict scrutiny. However, the government has a compelling interest in remedying past governmental discrimination against a racial or ethnic minority, but the governmental action must be narrowly tailored to that interest.

Lemon test

Government action will violate the Establishment Clause unless the action: (1) has a secular purpose; (2) has a primary effect that neither advances nor inhibits religion; and (3) does not produce excessive government entanglement with religion

Limited Public Forums

Government forums not historically open generally for speech and assembly but opened for specific speech activity

Nonpublic forums

Government property not historically open generally for speech and assembly and not held open for specific speech activities.

Class Action Fairness Act

Grant of jurisdiction. Lets a federal court hear a class action if the class is at least 100 members and any class member (not just the class rep) is of diverse citizenship from any defendant and the aggregated claims of the class exceed $5 million. Any one defendant may remove this case to federal court.

Easement

Grant of nonpossessory property interest entitling holder to use/enjoyment of another's land

Covenant for Further Assurances

Grantor promises she will do whatever is needed in the future to perfect the grantee's title if it later turns out to be imperfect.

Estoppel by Deed

Grantor purports to convey to grantee realty they don't then own Grantor later acquires title to the property Title automatically vests in grantee Grantor is estopped from denying validity of pre-acquisition conveyance as long as grantee is a bona fide purchaser.

Substantive due process

Guarantees that laws will be reasonable and not arbitrary, both with respect to rights enumerated in the Constitution and unenumerated rights. If a law limits liberty of all persons to engage in some activity, usually a due process question

Guilty Pleas

Guilty pleas must be knowing, voluntary, and intelligent; the defendant must understand the charge and consequences; and the defendant must be represented by an attorney.

When does someone have the capacity to consent to marriage?

Having the mental ability to consent to marriage at the time of the ceremony. Look for persons under the influence, persons mentally impaired, children

Requirements for Class Actions

Numerosity: there are too many class members for practicable joinder (80-100) Commonality: there must be some issue in common to all class members. Resolution of this issue will generate answers for everyone in one stroke Typicality: Class representative's claim must be typical of the class members Adequate representative: Class representative must fairly and adequately represent the class

When does an implied warranty of fitness or habitability apply to land sale contracts?

ONLY for sale of new home by builder

When can third parties be present during the execution of a warrant?

ONLY if they are there to identify stolen property

What must be included in offers for the sale of goods?

ONLY the quantity term

Extortion

Obtaining property by means of threats to do harm or expose information

False Pretenses

Obtaining title to personal property of another by intentional false statement of past or existing fact with intent to defraud. The false statement must be a major factor in the passing of title.

Default (civil procedure)

Occurs when the defendant doesn't respond to the complaint in time. This doesn't end case, just has clerk make a note of default on the docket of the case. Not automatic and plaintiff must move for entry of default. Cuts off defendant's right to respond, doesn't by itself allow plaintiff to recover.

What is an option contract?

Offeree gives consideration for offeror to not revoke offer for period of time.

How definite do the terms of an offer need to be?

Offers usually must include the offeree's name, offer's subject matter, and price

What if a witness to a will is a beneficiary?

Old view is called purging. Means that the witness is giving up their interest under the will so they can be a disinterested witness. Now many states say it is fine.

Harmless Error Test

On appeal, conviction upheld if the conviction would have resulted despite the violation.

Eggshell Skull Doctrine

Once a plaintiff has established all other elements of a claim, plaintiff receives ALL damages suffered, even if surprisingly great in scope.

Under a unilateral contract, when can an offer no longer be revoked?

Once performance has begun, the second the paintbrush hits the wall. Buying the paint is mere preparation, not performance

Post-Viability Rule

Once the fetus is viable, the state can prohibit abortions, unless an abortion is necessary to protect the woman's health or safety.

Tacking in Adverse Possession

One adverse possessor may tack onto his time his predecessor's time if in privity with previous AP, satisfied by any non-hostile nexus such as blood, contract, deed, will Not allowed when there has been ouster

Merger

One corporation is absorbed into another

Delegation (contracts)

One party finds replacement party to perform. Don't need consent of obligee. Original party's obligations aren't excused. People with special abilities can't delegate their duties.

State jurisdiction over divorces

One spouse must be domiciled in the state for the state to have jx

Special Assessment

One-time fee of a homeowners' association if dues don't cover an expense.

Voluntary Intoxication Defense

Only a defense to specific intent crimes. Results from the intentional taking, without duress, of a substance known to be intoxicating.

Who has fiduciary duties in a limited partnership?

Only general partners, not limited partners.

When is evidence of a person's other crimes, wrongs, or acts admissible?

Only if it is relevant to some issue other than their character or propensity to commit the crime charged or the alleged act in civil cases. (MIMIC)

When do modifications of contracts need to be in writing?

Only if the modified contract would fall within the Statute of Frauds. Look at the new contract with the modification, if it falls in statute of frauds, modification needs to be in writing.

when can original aggressor use self-defense?

Only if they effectively withdraw from the confrontation and communicate to the other their desire to do so OR the victim of the initial aggression suddenly escalates a minor fight into a deadly fight.

When can the articles of incorporation eliminate the liability of a director or officer?

Only in breach of duty of care cases

Warrantless Searches in Public Schools

Only reasonable grounds are necessary. Search is reasonable if it offers a moderate chance of finding evidence of wrongdoing and the measures are reasonably related to search objectives, and the search isn't excessively intrusive in light of the age and sex of student and the nature of the infraction.

Right to trial by jury

Only required for serious offenses. An offense is serious if imprisonment for more than six months is authorized.

Dissolution of a Partnership

Only required in limited circumstances -An event in the agreement that requires dissolution -The partnership becomes illegal -The issue of a judicial decree -Unanimous consent -Expiration of a term partnership -In general, when a partner dissociates by express will in an at-will partnership, the partnership is dissolved.

Fairness Factor for determining Personal Jurisdiction

Only used for specific jurisdiction analysis. Burden on defendant and witnesses, state's interest, plaintiff's interest

Bylaws

Operating manual for a corporation. Not filed with the state, but articles govern if there is a conflict. Board of shareholders can amend, repeal, or adopt new things in the bylaws.

Express Ratification

Oral or written affirmation of a contract by the principal

What duty does a property owner owe firefighters & police officers?

Owed no duty for risks inherent to the job.

Common Enemy Rule (property)

Owner can take any protective measures to get rid of surface water/combat its flow. Landowner fighting the common enemy still can't unreasonably harm or interfere with others' use and enjoyment of their own parcels.

Exemptions to the Fair Housing Act

Owner occupied buildings with no more than four units. Single family housing sold or rented if owner has no more than three single family homes.

Concurrent Ownership

Ownership by two or more persons at the same time. Joint Tenancy, Tenancy in Common, Tenancy by the Entirety.

How to create an affirmative easement

PING Prescription: Must be continuous, open and notorious, actual, and hostile use Implication: easement implied by preexisting use Necessity: Implied when landowner conveys part of her lands with no way out except with some portion of grantor's remaining land. (Buyer gets to pick where that easement is) Grant: signed writing (unless duration is outside Statute of Frauds)

priority: PMSI in goods other than inventory or livestock

PMSI jumps to the front of priority line if perfected immediately or within 20 days of when debtor gets possession.

Adoption

Parental rights are terminated with the purpose to place the child in a home where the child can be cared for. Two types: agency adoptions and private adoptions

Child Support

Parents have a duty to support their children based on the child's need and the ability of parents to pay. Paid regardless of whether a parent has visitation rights.

When are parties too closely related to get married?

Parents, grandparents, siblings, aunts & uncles. Include whole or half-blooded relatives. Some states prohibit those related only by adoption or only by marriage.

How does a parties' course of dealing affect the current contract?

Parties' conduct in prior contracts. Can be used to interpret current contract.

Course of Performance

Parties' conduct under prior installments of the current contract. Can be used to interpret current contract.

Does a partner still have apparent authority after dissociation?

Partner still has apparent authority to bind the partnership for a period of time, not exceeding two years after dissociation, assuming dissolution hasn't occurred. Partnership can protect itself by notifying creditors of the dissociation or by filing a public notice of dissociation.

Right to Wind Up

Partners who have not wrongfully dissociated may participate in the winding up of the partnership's business.

Scope of Discovery

Party can discover anything relevant to claim or defense and proportional to needs of the case.

Passive tortfeasor

Party held vicariously liable based on relationship to active tortfeasor

Impeachment by prior inconsistent statement

Party may show, by cross-examination or extrinsic evidence, that the witness has, on another occasion made statements inconsistent with their present testimony. Normally only admissible for impeachment purposes. But if the prior statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence. Extrinsic evidence can be introduced to prove a prior inconsistent statement only if, at some point: (1) the witness is given an opportunity to explain or deny the statement; and (2) the adverse party is given an opportunity to examine the witness about the statement

Safe Harbor Provision of Rule 11

Party seeking sanctions must serve motion on opponent. Party in violation has 21 days to fix.

Active tortfeasor

Party whose affirmative conduct caused the harm

Rescission

Party's mutual agreement to cancel the contract. Each party must have some performance remaining for effective recission.

How to determine if a harm is foreseeable (torts)

Passage of time is relevant, things that happen soon after are more likely to be foreseeable. Things that happen within a close geographic distance are more foreseeable. If it has happened before, it is more likely to be foreseeable.

Administrative Searches Exception to the Warrant Requirement

Passengers on an airline before boarding, drug tests of public school students participating in an extracurricular activity

Permanent Periodic Support

Paying a spouse $X dollars a month for recipient's lifetime or until they remarry. Can be increased, decreased, or terminated upon a substantial change in circumstance. To support a spouse who has neither the resources nor the ability to be self-sustaining.

Distributions of a Corporation

Payments from a corporation to shareholders. Could be dividend, to repurchase a stock, or a redemption (forced sale to the corporation at a price set in the articles). Shareholder doesn't have right to distribution until the board declares it.

Public Figures for Defamation

People who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, or (3) thrust themselves into particular public controversies to influence their resolution

Express Conditions Precedent (contracts)

Performance not due until the event occurs.

Variance (property)

Permission to depart from a zoning restriction. Must show undue hardship plus no diminution to neighboring property values.

Defensive nonmutual issue preclusion

Person asserting issue preclusion to avoid liability wasn't party to first case and is the defendant in this case. This person will be an allowed person to preclude an issue.

Offensive Nonmutual issue preclusion

Person asserting preclusion to support claim was not party to first case, and is now a plaintiff in the second case. Most states don't allow it, but is allowed under federal law if it would be fair.

Intestate as to property

Person who died had a will but the will didn't successfully get rid of all the property

Licensee (tort)

Person who enters land with permission but without financial benefit to possessor

Beneficiary of a Trust

Person who has equitable title to the property in a trust. Get the benefits of the property only as set forth in the trust.

Non-deadly force in self-defense

Person without fault may use such force as person reasonably believes is necessary to protect themselves from imminent use of unlawful force.

General Jurisdiction

Personal Jurisdiction over any cause of action, related or unrelated. Defendant must be "at home" in the forum

What property is covered under the Taking Clause?

Personal property, real property, and certain intangibles

Options for Service on an Individual

Personal service is in-hand delivery, can happen anywhere Substituted service (serving a substitute for the defendant) must take place at D's usual abode on someone of suitable age and discretion who resides there. Service on agent is fine as long as receiving service is within the scope of the agency. Any state law methods.

Fighting Words

Personally abusive words that are likely to incite immediate physical retaliation in an average person. Speech can be censored if it constitutes fighting words.

Principals in the first degree (common law)

Persons who actually engage in the act that constitutes the criminal offense

Principals in the second degree (common law)

Persons who aid, advise, or encourage and are present at the time the crime is committed

Accessories Before the Fact (common law)

Persons who assisted or encouraged the principal but wasn't present when the crime was committed.

Accessories after the fact (common law)

Persons who, with knowledge the other person committed the felony, assisted them to escape arrest or punishment

How to change domicile?

Physical presence in a new place and a subjective intent to make new place domicile for the foreseeable future

Physical Custody of a Child

Physically caring for the child

Negligence per se

Plaintiff borrows criminal statute as alternative standard of care to reasonably prudent person. Violation of statute establishes duty and breach.

Joint and several liability

Plaintiff can recover full damages from any defendant that Plaintiff chooses

Business Relationship Cases of NEID

Plaintiff can recover if highly foreseeable that careless performance by the defendant will produce emotional distress

Waiver of Service of Process

Plaintiff may request that defendant waive service by mailing the complaint and two copies of a waiver form, with a prepaid means of returning the form. If defendant denies the request or fails to respond, plaintiff must serve through another acceptable method. If defendant agrees to waive service, defendant extends her time to answer the complaint to 60 days from the date of waiver request was sent (as opposed to 21 days). Waiving service does not waive the right to object to venue or jx. For timing purposes, the date of service counts as the day the plaintiff files the waiver with the court.

Voluntary Dismissal with Court Permission

Plaintiff must make motion for voluntary dismissal, Court's discretion to grant or deny. You get first voluntary dismissal without prejudice (plaintiff can refile). Second voluntary dismissal extinguishes claim.

Actual Malice for defamation

Plaintiff must prove by clear and convincing evidence that the allegedly defamatory statement was made with: Knowledge that it was false or reckless disregard as to its truth or falsity

Factors to gain a temporary restraining order

Plaintiff must show: Likely to suffer irreparable harm if TRO isn't issued Likely to win on the merits Balance of hardships (your potential harm outweighs potential harm to other party) Public interest

Recrimination Defense to Divorce

Plaintiff who was seeking a divorce based on fault can't get the divorce because the plaintiff also committed the fault

Limits on Supplemental Jurisdiction in Diversity Cases

Plaintiffs cannot invoke supplemental jurisdiction in diversity case unless case has multiple plaintiffs and claim by one of them doesn't meet amount in controversy.

Additur

Playing hardball with D. After finding that a damage figure shocks the conscience, the court gives D a choice: pay a greater amount of damages or go through a new trial. Not allowed in federal court.

Treatment of parties present during the execution of a search warrant.

Police can detain those present at a house while they are executing a warrant, but they can't search these people if they aren't named in the warrant.

Hot Pursuit Exception

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may pursue suspect into a private dwelling.

Plain View Exception to Warrant Requirement

Police may make a warrantless seizure when they are legitimately on the premises, discover evidence, contraband, or fruits or instrumentalities of crime, see evidence in plain view, and have probable cause to believe item is evidence, contraband, or fruits or instrumentalities of crime.

Gant Searches

Police may search the passenger compartment incident to arrest if: Subject is unsecured and within distance of the vehicle (in process of arresting him) OR the police reasonably believe evidence of offense for which the person was arrested may be found.

Automobile Stops

Police may stop a car if they have at least reasonable suspicion that the law has been violated. During routine traffic stops, a dog's sniff is not a search as long as the police don't extend the stop past the normal time that would be required to write you a ticket.

What constitutes government conduct for a search?

Police officers, government agents, private individuals acting at the direction of the police.

Adverse Possession

Possession for statutorily prescribed time can ripen into title if elements are met

Tax Consequences of Spousal Support

Post 2019, spousal support payments are NOT income to the recipient nor deductible by the payor. For divorce decrees entered and separation agreements executed before 2019, spousal support payments are deductible by the payor and are income to the recipient unless the instrument is modified to comport with the new rule.

What are critical stages of judicial proceedings under the sixth amendment right to counsel?

Post-indictment interrogation, preliminary hearings to determine probable cause to prosecute, arraignment, post-charge lineups, guilty plea and sentencing, felony trials, misdemeanor trials when imprisonment is actually imposed, overnight recess during trial, appeals as a matter of right, appeal of guilty plea

Congress's War Powers

Power to declare war, raise and support armies, and provide for and maintain a navy

Express Trustee Powers

Powers granted to a trustee in the trust instrument

Who manages an LLC?

Presumed to be managed by all of the members but other management arrangements can be made. Majority vote is required for any ordinary business decisions. Unanimous vote of the members or managers is required for any business that isn't ordinary. Fiduciary duties are applied to those with management power.

Fertile Octogenarian Rule

Presumption that a person can have children, no matter their age.

Why Defendants Seek Recognition

Prevent a plaintiff from relitigating a claim or issue in a different court

Fourteenth Amendment

Prevents states from depriving any person of life, liberty, or property without due process and equal protection of law.

What must be included for land safe offers?

Price and description of the land

Miranda Warnings

Prior to custodial interrogation, a person must be told they have the right to remain silent, anything said can be used against them in court, they have the right to an attorney, and if they can't afford an attorney one will be appointed.

Horizontal Privity (succession of estate)

Privity of estate between the original covenanting parties. When the covenant was made, the parties needed to share some relationship regarding land in addition to the making of the covenant Ex: they are each other's landlord/tenant, mortgagee/mortgagor, grantor/grantee

Answer

Procedurally, a defendant's response to the plaintiff's complaint. Must admit, deny, or say you don't know to each allegation. Failure to respond to an allegation is an admittance (except for damages). Defendants must raise affirmative defenses in the answer and they aren't waived if not asserted.

Removal

Procedure allowing a defendant to move a case form state court to federal court. a case can be removed if the case filed in state court could have been brought in federal court Court will remand if removal is improper.

Manufacturing Defect

Product emerges from manufacturing different from others and more dangerous than consumers would expect

Exculpatory Clause in Trust

Provision that relieves the trustee from liability for breaches. Courts interpret them strictly, only used to exculpate negligent conduct.

adequate provocation (voluntary manslaughter)

Provocation would arouse sudden and intense passion in the mind of an ordinary person and defendant was in fact provoked. Not sufficient time between provocation and killing for passions of reasonable person to cool and defendant in fact did not cool off.

Defenses to Choice of Law

Public Policy - a forum court will not apply a law against its own FUNDAMENTAL public policy Procedural Rules - regardless of the choice of law analysis the forum court will always apply its own procedural rules.

Traditional Public Forums

Public property that has historically been open to speech-related activities.

Designated Public Forum

Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy.

Things the trustee isn't allowed to do

Purchase property from or sell property to the trust, borrow from the trust, claim excessive compensation.

Cover Damages

Purchase substitute goods and sue for the difference between the cost of the new goods and the contract price.

Contact Factor for Personal Jurisdiction

Purposeful availment (voluntary act targeting forum) and foreseeable that defendant could get sued in the forum.

Expectation Damages

Put injured party in the position they'd be in had the contract been performed

Common interest privilege to defamation

Qualified privilege for statements made to colleagues within the same organization

Contract for sale of goods $500+ must have

Quantity term and defendant's signature

Leading Questions

Questions that suggest the desired answer. Generally allowed only on cross-examination. However the court will normally allow leading questions to elicit preliminary matter; when the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness; or when the witness is hostile

What are the three kinds of deed?

Quitclaim, General Warranty, Special Warranty

Gerrymandering

Racial gerrymandering cannot be the predominant factor in drawing the boundaries of voting districts. Political gerrymandering is non-justiciable political question.

Defense of Property

Reasonable, non-deadly force may be used to defend property in one's possession from what they reasonably believe is an imminent unlawful interference. Force can't be used if a request to desist would suffice. A person may use force to regain possession of property only if they are in immediate pursuit of the taker.

Receipt of Stolen Property

Receiving possession and control of stolen personal property known to have been stolen by another person with intent to permanently deprive owner.

Defenses to No-Fault Divorce

Reconciliation. If they live apart for a while but then start living together again, clock restarts

What must judge do in a bench trial?

Record her findings of fact and conclusions at law, orally or in writing, then enter judgment.

Wild Deed

Recorded deed that isn't connected to chain of title (incapable of giving constructive notice). Recording a wild deed is essentially the same as never recording.

Records of Vital Statistics Exception

Records of vital statistics are admissible if reported to a public office in accordance with a legal duty

Prohibited Actions under the Fair Housing Act

Refusing to negotiate, rent, or sell housing, or give mortgage Providing different terms for sale/rental Falsely representing dwelling as unavailable.

Notice for meetings of the board of directors

Regular meetings require no notice Special meetings require notice: at least two days notice of the date, time, and location.

Strict Scrutiny

Regulations involving fundamental rights or involving suspect classifications. the law is upheld if it is necessary (the least restrictive means) to achieve a compelling government purpose. The government has the burden of proof.

Intermediate Scrutiny

Regulations involving quasi-suspect classifications (gender and legitimacy) are reviewed under the intermediate scrutiny standard. The law is upheld if it is substantially related to an important government purpose. The burden of proof is usually on the government.

Rational Basis Scrutiny

Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications are reviewed under the rational basis standard. The law is upheld if it is rationally related to a legitimate government purpose. The person challenging the law has the burden of proof.

Mistake of Fact Defense

Relevant to criminal liability if it shows the defendant lacked the state of mind required for the crime. If the mistake is offered to disprove specific intent, the mistake can be unreasonable. But to disprove any other state of mind, the mistake must be reasonable.

What are the relevant factors in determining whether a informant's tip is enough to establish probable cause?

Reliability, credibility, basis for knowledge

What is the remedy under promissory estoppel?

Reliance damages

Modification Agreement

Replaces existing contract with new one immediately

Partial Failure to Respond to Discovery

Requesting party moves for order compelling discovery, opposing party fails to respond to the court order. Merits sanctions including contempt (contempt isn't available for refusing a medical exam)

Implied Warranty of Habitability

Requirement that premises be fit for basic human habitation. Applies to residential leases only, non-waivable. Check case law & housing code. Check no heat in the winter, no water, no plumbing.

Irrevocable Proxy

Requires (1) the proxy says it's irrevocable and (2) the proxy-holder has some interest in the shares other than voting.

Test to Modify Child Support Orders

Requires a substantial and continuing change of circumstance

Proximity Test for Attempt

Requires an act dangerously close to success

Settlement of Certified Class Action

Requires court approval, must give notice to class members and get their feedback. With a type three class, court might disprove the settlement unless members are given a second chance to opt out.

Installment Contracts

Requires delivery of goods in separate installments over specified period. Buyer can reject installment if nonconformity substantially impairs value of installment. Contract breached if nonconformity substantially impairs entire contract's value.

Fundamental Corporate Change: Amending articles

Requires majority of shares entitled to vote

School Speech

Restrictions on speech related to the school's teaching must be reasonably related to legitimate pedagogical concerns.

Content-Neutral Speech Regulations

Restrictions that are both subject matter-neutral and viewpoint-neutral. Generally are subject to intermediate scrutiny (must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary.)

Involuntary Intoxication Defense

Results from taking substance without knowledge of its nature, under duress, or pursuant to medical advice while unaware of intoxicating effect. Can be defense to all crimes.

Impact of death on an offer

Revocable offers are terminated. Irrevocable offers remain irrevocable for a reasonable time.

Will revocation

Revocation by operation of law, revocation by physical act, and revocation by subsequent writing

Partition

Right of joint tenant and tenant in common to seek dissolution. 1. Amicably by voluntary agreement. 2. Partition in kind 3. Forced sale (allowed if fair/equitable physical division isn't possible)

Right of First Refusal

Right that could be provided for in the articles of incorporation or bylaws that forces shareholder to offer to sell stock back to corporation before selling it to a third party.

Affirmative Easement

Right to go on to and do something on another's land

Negative Easement

Right to prevent landowner from doing something (light, air, support, stream water from artificial flow). Can only be created expressly.

Personal Student Speech Off Campus

Schools are limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citizens

Equity securities

Securities issued by corporations as a form of ownership in the business (stock). Person holding stock is an owner of the corporation

Protective Defenses in Tort

Self-defense, defense of others, defense of property. Must be a perceived threat coming from the plaintiff. Threat must be happening right this minute or the threat must be imminent.

How does dissolution of a partnership work?

Sell off the partnership then use that money to pay partnership creditors. If there is enough to pay creditors, partners are paid what remains according to their profit sharing agreement. If there isn't enough, creditors are paid by the partners according to the loss sharing agreement.

Article II Reclamation

Seller can get reclamation if: buyer is insolvent, buyer still has goods, and seller demands reclamation within 10 days of receipt.

Exception to Reclamation Rule

Seller can reclaim goods beyond 10-day limit if: Buyer misrepresents solvency, in writing, within 3 months before delivery

Delivery Obligations for a Shipping Contract

Seller delivers goods to common carrier, arranges for delivery, and notifies buyer. At this point, risk of loss passes to buyer. Assume shipment contract on bar exam unless indicated otherwise.

Express Warranties

Seller describes the goods, showing a sample or model of the goods, or promises facts about the goods. Doesn't include opinions.

Delivery obligations for destination contracts

Seller must deliver goods to buyer's location.

Output Contract

Seller promises to sell to a buyer all the goods the seller produces

Marketable Title

Seller's implied promise to provide title reasonably free from doubt/threat of litigation on closing. Look for defects in the record chain of title (for title to be marketable, the seller must provide good record title without AP issues), encumbrances (outstanding mortgages, liens, servitudes UNLESS buyer waives them), existing violations of zoning ordinances

Disclaimer of Warranties

Sellers can disclaim implied warranties, not express warranties.

Transmutation of Separate Property (family law)

Separate property can become marital property based on the intent of the parties. Ex: using inheritance as a down-payment on a home in you and your wife's name creates implication of marital property.

Chain of Title

Sequence of recorded documents capable of giving record notice to later takers

Separation Agreements

Spouses enter into an agreement to decide all of the issues arising because of their separation. Entered into after marriage and enforceable if supported by consideration. Can waive alimony and equitable distribution of property. Can agree on custody and child support, but court isn't bound.

Involuntary Termination of Parental Rights

State brings petition to terminate parental rights because the child is in need of care because it is in dangerous or unsupportive circumstances. When can this happen? (1) infliction of serious physical harm, (2) abandonment, (3) neglect or deprivation, (4) failure to provide support, (5) mental health of parent that results in inability to care for the child, (6) parental unfitness

State jurisdiction over property division or alimony cases

State court must have personal jurisdiction over the defendant spouse in order to enter an order affecting that spouse.

Twenty-First Amendment

State governments have wide latitutde over the importation of liquor and the conditions under which it is sold or used within the state. However, regulations that constitute only an economic preference for local liquor Ms may violate the Commerce Clause.

Anti-lapse statute

State law providing that gifts to deceased heirs go to those person's heirs. If the will says otherwise, do what the will says. Some states say there needs to be a family relationship between decedent and predeceased beneficiary.

Where is a corporation at home when determining jurisdiction?

State of incorporation and state of its principal place of business.

Physician-Patient Privilege

State privilege only. Confidential information acquired by a physician is privileged if: (1) there was a relationship for the purposes of medical treatment (2) the info was acquired for the purpose of diagnosis or treatment and (3) the info was necessary for diagnosis or treatment

Statements Offered Against Party Procuring Declarant's Unavailability

Statement of a person, now unavailable as a witness, is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability. The party's motivation was to prevent the declarant from testifying.

Hearsay

Statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted

Statements of Personal or Family History

Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, are admissible provided that -The declarant is a member of the family in question or intimately associated with it AND -The statements are based on the declarant's personal knowledge of the facts or their knowledge of family reputation

Ancient Documents Hearsay Exception

Statements in any authenticated document prepared before January 1, 1998 are admissible

Authentication of Telephone Conversation

Statements made during a telephone conversation can be authenticated by any party to the call who testifies that: (1) they recognized the other party's voice; (2) the speaker had knowledge of certain facts that only a particular person would have; (3) they called a particular person's number and a voice answered as that person or that person's residence; or (4) they called a business and talked with the person answering the phone about matters relevant to the business

Family Records Exception

Statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings are admissible

Privileges and Immunities Clause of the Fourteenth Amendment

States may not deny their citizens the privileges or immunities of national citizenship.

One Person, One Vote Principle (congressional elections)

States must use almost exact mathematical equality when creating congressional districts within the state.

Statute of Limitations Choice of Law Issues

Statute of limitations is considered procedural in determining which law to apply, so the forum court will apply its own statute of limitations.

How do disabilities affect adverse possession?

Statute of limitations won't run against a true owner afflicted by a disability at the inception of the adverse possession. Common disabilities include: insanity, infancy, imprisonment

Relocation Statute for Child Custody

Statute to change the child's primary residence. Requires non-moving parent to have notice and an opportunity to be heard about the relocation. Courts will consider whether the relocation is within the child's best interest. Courts want to make sure the move isn't an attempt to thwart the child's relationship with the other parent.

Child Support Guidelines

Statutorily enacted formulas for determining the amount the noncustodial parent must pay for the support of each child.

Secured Party versus Statutory Lienholder

Statutory lienholder wins if they maintain possession of collateral

Erie Doctrine

Step One: Is there a federal law on point that directly conflicts with state law? If so, you apply that federal law so long as it's valid Step Two: Federal judge must apply state law if issue is substantive and there is no applicable federal law Step Three: If the issue isn't clearly substantive, the federal judge must determine whether the issue she must decide is substantive

Supplemental Jurisdiction Test

Step One: Look for SMJ in additional claim (don't need to find supplemental jurisdiction until you have shown you need it) Step Two: additional claim must arise from a common nucleus of operative fact as claim in existing federal court case.

Liability for abnormally dangerous activities

Strict liability Defined: 1. Activity cannot be made reasonably safe even if ordinary care is used 2. Activity not common in area it is conducted. Look for explosives, handling dangerous chemical/biological materials, nuclear energy/radiation

Tag Jurisdiction

Subject to state's jurisdiction if D is served with process while in the forum state. Defendant is immune from process while appearing in another case.

Impeachment of witness with bad acts involving truthfulness

Subject to the discretionary control of the judge, a witness may be interrogated upon cross with respect to an act of misconduct if the act is probative of truthfulness. Must have a good-faith basis to believe the witness committed the misconduct. Extrinsic evidence isn't permitted.

Subpoena Duces Tecum

Subpoena requiring deponent to bring requested materials to the deposition. Ex: you're taking a deposition of a non-party and you want the non-party to show up with documents, serve this.

Race-notice Jurisdiction for recording statutes

Subsequent purchaser wins if he is a bona fide purchaser and he records before the prior grantee records

Performance Requirement for Common Law Contracts

Substantial performance is enough, meets contract's essential purpose.

Fundamental Corporate Changes: Transfer of all or substantially all assets

Substantially all: at least 75%. This is considered a fundamental corporate change ONLY for the seller, not the buyer

Citizenship of Decedents, Minors, or Incompetents

Such persons must sue or be sued through a representative. The representative's citizenship is irrelevant. Use the citizenship of the decedent, minor, or incompetent.

How to rebut the presumption of partnership when profits are shared?

Suggest the absence of a co-owner relationship by showing no right to control or no sharing of losses

Alimony

Sum of money paid by one spouse to the other economically dependent spouse. Trial court has a great deal of discretion. Generally four types of alimony.

What is a reasonable inspection for determining the duty of a property owner for an invitee?

Take place at reasonable intervals of time and take place at reasonable intervals of time. Ask if a reasonable prudent person would've discovered it in their inspection. To determine what is a reasonable interval of time, look at type of property & what is happening on the property, look at custom of other property possessors in similar situations.

Citizenship of Unincorporated Associations

Takes on the citizenship of all its members

Priority for PMSI in inventory or livestock

Takes priority over conflicted security interests if: before debtor receives possession, the secured party perfects and sends authenticated notice to other holders and notice received within five years of debtor getting possession.

Larceny

Taking and carrying away of tangible personal property of another by trespass with the intent to permanently deprive

Robbery

Taking of personal property of another from the other's person or presence by force or threats with intent to permanently deprive.

Taxation of LLC

Taxed as partnership unless it elects to be taxed as a corporation. Taxed on a pass-through basis, no entity-level tax. Passed through the owners and reported on the owner's individual tax returns regardless of whether the business income is actually distributed to the partners.

Ad valorem property tax

Taxes based on the assessed value of the property in question.

Sales Taxes

Taxes imposed on the seller of goods for sales consummated within the state.

Temporary denials of all economic use

Temporarily denying an owner of all economic use of property doesn't constitute a per se taking. Instead the Court will carefully examine and weigh all the relevant circumstances (planners' good faith, reasonable expectations of the owners, the length of the delay, the delay's actual effect on the value of the property) to determine whether fairness and justice require just compensation

Temporary Occupations under the Taking Clause

Temporary occupations by the government may also be a taking, depending on factors like the degree of invasion, the duration, the government's intention, the foreseeability of the result, the character of the property, and the interference with the use of the property.

Implied Covenant of Quiet Enjoyment

Tenant has a right to quiet use & enjoyment without interference from the landlord. Applies in residential and commercial leases. Is breached by wrongful eviction or constructive eviction. Landlord has duty to abate nuisances & control common areas.

Visitation

Term when a parent is not granted custody over a child (they are mutually exclusive). Absolute denial of visitation to a parent is rare, courts generally give parents supervised visitation unless harm to the child will result.

Lowest Intermediate Balance Test

Test used to find out what commingled funds are identifiable proceeds. Look at balance at time proceeds are deposited and ending at the time you are applying the test, the lowest balance during that period is the identifiable proceeds (but it cannot exceed the value of the cash proceeds originally deposited).

Testamentary Secret Trust

Testamentary gift that is silent about the trust nature of the transfer. Courts will often allow a beneficiary to bring in evidence to show what happened and seek a constructive trust remedy against the will beneficiary.

Mistake in Inducement (will)

Testator is mistaken about a material fact on which he bases his will. Courts will not invalidate a will based on this.

When is opinion testimony by a lay witness admissible?

Testimony is: -rationally based on the witness's perception -Helpful to a clear understanding of the witness's testimony or helpful to the determination of a fact in issue; and -Not based on scientific, technical, or other specialized knowledge

Attestation Clause

That clause (e.g., at the end of a will) wherein the witnesses certify that the instrument has been executed before them, and the manner of the execution of the same. Not required but most states say they raise a prima facie bit of evidence that the will was properly executed.

Zone of Danger

That imaginary zone in which plaintiff acted within which danger to others was foreseeable

Penalty for Failure to Disclose material that was required to be disclosed

That party can't use undisclosed material unless failure to disclose was harmless.

Restrictions on a State's choice of law rules

The Constitution limits a state's ability to decide which law to apply only in situations where the state decides to choose a law that has no significant contact with or legitimate interest in the litigation. If the state passes a choice of law provision by statute, that should be followed over the CL

The Taking Clause

The Fifth Amendment provides that private property may only be taken (1) for public use and (2) the government must pay just compensation

True Threats

The First Amendment also does not protect true threats, which are words that are intended to convey to someone a serious threat of bodily harm.

Neutral Law of General Applicability

The Free Exercise Clause cannot be used to challenge government regulation unless the regulation was specifically designed to interfere with religion

Removal of Appointees

The President can remove high level, purely executive officers at will, without any interference by Congress. Congress also cannot restrict the President from removing the head of an independent agency if that person is the sole director and has significant executive power. However, Congress can provide statutory limitations on the President's power to remove all other executive appointees.

Pocket Veto

The President has 10 days to exercise the veto power. If the President fails to act within that time, the bill is automatically vetoed if Congress isn't in session. If Congress is in session, the bill becomes law.

Executive Privilege

The President has a privilege to keep certain presidential communications secret so that the President can receive candid advice and protect national security

Executive Immunity

The President has absolute immunity from civil damages based on any action taken while exercising official responsibilities, but there is no immunity for acts that allegedly occurred before taking office.

The President's Treaty Power

The President has the power to enter into treaties with the consent of two-thirds of the Senate.

Impeachment

The President, Vice President, and all civil officers of the United States are subject to impeachment. Grounds include, treason, bribery, and high crimes and misdemeanors. A majority vote in the House is necessary to bring impeachment charges and a two-thirds vote in the Senate is necessary to convict and remove from office.

When can a State regulate commerce in the absence of Congressional Action?

The State can regulate local aspects of interstate commerce if it doesn't discriminate against or unduly burden interstate commerce.

Age of majority

The age at which a person can enter into a marriage. Generally 18. 16 and 17 year olds can marry with parental consent. Most states require judicial consent for minors under the age of 16 to marry.

Collateral Order Doctrine

The appellate court has discretion to hear an appeal on an issue if (1) that issue is distinct from the merits of the case, (2) it involves an important legal question, and (3) the issue is unreviewable if we wait for a final judgment.

Who is a trustee who breaches trust liable to?

The beneficiaries

Who hires and fires officers of a corporation?

The board of directors

Who is liable if stock is sold for less than par?

The buyer, the directors if they knowingly authorized the issuance.

Proximate Causation (criminal law)

The cause is a proximate cause if the result is a natural and probable consequence of the conduct, even if the defendant didn't anticipate the precise manner in which the result occurred. Superseding factors can break the chain of causation

Freedom of Association

The government may neither prohibit politically unpopular groups nor unduly burden a person's right to belong to such groups. If a right to association is substantially burdened by a content-based regulation, strict scrutiny is triggered. But a content-neutral regulation that incidentally burdens association is only subject to intermediate scrutiny.

Coercion Test for the Establishment Clause

The government may not directly or indirectly coerce individuals to exercise or refrain from exercising their religion

Neutrality Test for the Establishment Clause

The government must remain neutral with respect to religion, neither favoring nor disfavoring it

Indefeasibly Vested Remainder

The holder of this remainder is certain to acquire an estate in the future, with NO STRINGS ATTACHED. If remainderman passes before owner of the possessory estate, the interest passes by will or by intestacy.

Perjury

The intentional making of a false statement as part of the testimony by a sworn witness in a judicial proceeding on a matter relevant to the case at hand.

Deadly Weapon Rule

The intentional use of a deadly weapon creates an inference of an intent to kill

Ripeness

The issues are fit for judicial decision and the plaintiff would suffer substantial hardship in the absence of review

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

The jurisdictional statute that is used when deciding which state should initially order child custody and which state has the jurisdiction to modify the order.

What are the terms of acceptance?

The language of the offer controls acceptance

What state's law governs a case?

The law is selected by the forum court under their choice of law approach.

Right of redemption

The legal ability to buy back one's property within the time specified in each state after a judicial sale by paying the debt, interest and certain costs.

Grounds for divorce

The legal reasons given for wanting a divorce. Either no-fault or fault divorce.

Premises Liability

The liability of landowners and leaseholders for torts that occur on their real property.

Forgery

The making or altering of a writing with apparent legal significance so that it is false with intent to defraud

What is the effect of an annulment?

The marriage is set aside as if it never existed, but children remain marital children and child support is still allowed. Spousal support may be awarded but not in all states. With regard to property, the state tries to place the parties back to their premarital state.

Fee Simple Absolute

The maximum possible estate or right of ownership of real property, potentially continuing forever. "To A" or "To A and his heirs." Devisable, descendible, alienable.

What happens if the plaintiff wins a derivative suit?

The money from the judgment goes to the corporation. Plaintiff recovers costs and fees.

Presumptions of Paternity

The mother's spouse is presumed to be the father of a child that is born during marriage. If the child is born within 300 days of the termination of a marriage, the ex-husband is still presumed to be the father.

Who is in charge of enforcing charitable trusts?

The office of the state's attorney general

Psychotherapist/Social Worker-Patient Privilege

The patient has a privilege against disclosure of confidential information acquired by the psychotherapist (or social worker or someone of the like-degree doesn't matter as long as they are giving psychological help) in a professional relationship entered into for the purpose of obtaining treatment. Doesn't apply where the patient puts their mental condition at issue.

Intestate as to the person

The person died without a will at all

Record Shareholder

The person shown as the owner in the corporate records

What happens if the plaintiff loses a derivative suit?

The plaintiff cannot recover costs and fees & is liable for the defendant's fees if sued without reasonable cause.

Is there a right to amend pleadings?

The plaintiff has a right to amend her complaint once no later than 21 days after the defendant serves her first rule 12 response. The defendant has the right to amend his answer once no more than 21 days after service.

Joinder by the Plaintiff

The plaintiff may join as many claims as the plaintiff has against the defendant, as long as there is subject matter jurisdiction over the claims

Twiqbal Standard

The plaintiff must plead sufficient facts to support a plausible claim. Judge uses own experience and common sense to see if this is met. Defendant challenges pleading under Rule 12(b)(6)

Terry Stops

The police can detain a person for investigatory purposes if they have reasonable suspicion of criminal activity supported by articulable facts.

Emergency Aid Exception to the Warrant Requirement

The police may enter a premises without a warrant if the officer faces an emergency that threatens health or safety.

4th Amendment Issues with Informational Roadblocks

The police must stop cars on the basis of a neutral, articulable standard. The stop must be designed to serve a purpose that is closely related to the problem pertaining to cars and their mobility (DUI checkpoint)

Supplemental Jurisdiction

The power of the federal court to hear an issue which would normally belong in state court, if that issue is incident to the adjudication of a federal question.

Enumerated Powers

The powers explicitly given to Congress in the Constitution.

Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

President's Appointment Power

The president appoints ambassadors, justices of the Supreme Court, and other officers of the United States whose appointments are not otherwise provided for in the Constitution.

Pardons

The president may grant pardons for all federal offenses but not for impeachment or civil contempt

Estate Administration

The process in which a decedent's personal representative settles the affairs of the decedent's estate (collects assets, pays debts and taxes, and distributes the remaining assets to heirs); the process is usually overseen by a probate court.

Privity of Contract

The relationship that exists between the promisor and the promisee of a contract.

In-State Defendant Rule

The removal statute bars removal of a diversity case if any defendant is from the forum state. applies ONLY to diversity cases

State Action

The requirement that government or its agents must be involved in order for the Constitution or the Bill of Rights to apply.

Right to Refuse Medical Treatment

The right of a mentally competent adult to refuse medical treatment is a part of an individual's liberty under the Fifth and Fourteenth Amendment Due Process Clauses.

Preemptive Right

The right of an existing shareholder to maintain the percentage of ownership they currently have by buying stock if there is a new issuance of stock for money. If the articles are silent, we assume there are no preemptive rights.

Possibility of Reverter

The right retained when a fee simple determinable is granted. If the limitation on the fee simple determinable takes place, it goes back to the original owner. If it doesn't take place, the original owner will not get the property back.

Lateral Support

The right to have adjacent property support the natural boundaries of the land. If landowner causes adjacent land to subside: -if the land is in natural state: strict liability -if land is improved: liability if negligent

Right to Vote

The right to vote is a fundamental right. Restrictions on that right other than on the basis of residence, age, and citizenship are invalid unless they can pass strict scrutiny

Risk of Loss

The risk of one party's having to bear the loss due to damage, destruction, or loss of goods bargained for under a sales contract.

What is important about foreclosure issues?

The sale has to be commercially reasonable.

What if seller ships the wrong goods in response to an offer to buy a CD

The seller accepted the offer but breached the contract

Outstanding Stock

The shares of stock that have been issued and not reacquired.

Intent to permanently deprive

To be convicted of larceny, at the time of the taking, the defendant must have intended to permanently deprive the person of their property. If the defendant believes the property is their own, if defendant only intended to borrow the property, or if the defendant intended to keep the property as repayment of debt, it doesn't meet required intent

Dissociation by Express Will

To give notice to the partnership that you are leaving

Deeds

To pass title: must be lawfully executed and delivered

When can prior acts be introduced?

To prove intent, rebut impossibility, prove causation, habit

Best Evidence Rule

To prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original's absence

Custody to a Nonparent

Uncommon because of the constitutional protections provided to parents. To be entitled to custody, the nonparent will bear the burden of proof to show harm to the child if custody is left with the parents. Look for abandonment, neglect, abuse, or surrendering custody.

Exclusionary Rule

Unconstitutionally obtained evidence is excluded at trial.

Common Law Infancy Defense

Under Age 7 = no criminal liability Ages 7-14 = rebuttable presumption that the child is unable to understand the wrongfulness of acts Age 14 and older = treated as an adult

Failure to Give Adequate Assurance

Under Article II, a party with reasonable grounds to be insecure about the other party's performance may ask for assurance the other party will perform. If assurance isn't received, anticipatory repudiation.

False Conflict

Under the interest analysis approach, when there is really only one state that has a legitimate interest in the lawsuit. Apply the law of the only interested state.

True Conflict

Under the interest analysis approach, when two or more states have a legitimate interest in the lawsuit. If the forum is interested, apply the forum state law.

Most significant relationship choice of law approach

Under this approach, the court will apply the law of the state which is most significantly related to the outcome of the litigation. To determine this, the court will consider connecting facts and policy principles. Connecting facts: talk about what happened where. Policy principles: looks like interest analysis.

Interest Analysis Choice of Law Approach

Under this approach, the court will consider which states have a legitimate interest in the outcome of the litigation. The forum court will apply its own law as long as it has a legitimate interest.

Clause Prohibiting Oral Modification

Unenforceable in CL contracts but enforceable under Article 2 contracts.

Jurisdiction over Child Support Orders

Uniform Interstate Family Support Act (UIFSA) -Original JX- where first petition is filed. A second state can exercise jx ONLY if: second petition filed before answer, petitioner objected to jdx in first action, AND the second state is child's HOME STATE

Ameliorative Waste under Tenancy in Common

Unilateral change increasing value. Co-tenant can still proceed against changer for any sentimental losses.

Battery

Unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.

Kidnapping

Unlawful claiming of a person that involves either (1) some movement or (2) concealment of a victim in a secret place.

False Imprisonment

Unlawful confinement of a person without their valid consent. In MPC, the confinement must interfere substantially with the victim's liberty.

Common Law Murder

Unlawful killing of a human being with malice aforethought

Power of States to Tax Interstate Commerce

Unless authorized by Congress, state taxes that discriminate against interstate commerce violate the Commerce Clause.

Limits on Depositions

Unless court orders otherwise: A party can't take more than ten depositions Can't depose the same person twice Can't exceed one 7-hour day

Scheduling Order

Unless local rule or court order says otherwise, the court enters an order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc. This is a roadmap for how the litigation proceeds up to trial.

Voting Rule for General Partnerships

Unless otherwise agreed, all partners have equal rights in the management of the business, and they have equal votes. Decisions regarding matters within the ordinary course of the business require the majority vote of the partners. Matters outside the course of the business require the approval of all members.

How are profits and losses shared in a partnership?

Unless otherwise agreed, profits are shared equally by number. Unless otherwise agreed, losses are shared in the same manner as profits.

Tort of nuisance

Unreasonable interference of another's rights to use and enjoy their property

When can a party send discovery requests?

Until after the Rule 26(f) conference EXCEPT for requests to produce

Duration of Child Support

Until the child reaches the age of majority, the death of the child, emancipation of the child, or termination of parental rights. Support can extend for longer periods of time if the child is disabled.

Exclusion of witnesses

Upon a party's request, the trial judge must order witnesses excluded from the courtroom. The judge may also do this on their own motion. The judge can't exclude (1) a party or a designated officer or employee of a party, (2) a person whose presence is essential to the presentation of a party's claim or defense, or (3) a person statutorily authorized to be present

Termination of a Conspiracy

Upon completion of the wrongful objective

Right of Survivorship

Upon the death of a joint tenant or tenant by the entirety the interest does not pass to the tenant's heirs but to the other joint tenant(s).

Support Provisions to a trust

Use of the property is limited to the beneficiary's support (health, education, etc.). Presumption is that the trust will support the beneficiary to maintain the lifestyle they are accustomed to.

Service on a Minor or Incompetent

Use state law method where service is made.

Daubert Factors

Used by judge to determine the reliability of all expert testimony. -Testing of principle or methodology -Rate of error -Acceptance by experts in the same discipline -Peer review and publication

Frolic or Detour test

Used to determine if an employee's actions are part of the scope of employment. If they take a minor departure from work, it is only a detour and the employer is liable. If it is a major departure, the departure isn't part of the scope of employment and no vicarious liability

Foreseeability Test (torts)

Used to determine if there's proximate cause. Ask if the outcome was a foreseeable risk associated with defendant's breach.

Paternity Suits

Used to establish paternity, usually by an unwed mother to gain child support. Statutes of limitations for paternity suits are tolled during the minority of the child. Most states use blood or tissue sampling to prove paternity.

Legal capacity to create a will

Usually means a person is at least 18 years old, although not necessary in some states.

Loss in Value Damages

Value of promised performance minus value of actual performance. Used where buyer keeps nonconforming goods.

Tenants Duty to Repair

When lease is silent tenant must maintain the premises and make routine repairs. This doesn't include ordinary wear & tear repairs. Includes duty not to commit waste. But long-term tenants can make changes that reflect the neighborhood overall.

Litigation Hold

When litigation is reasonably anticipated, parties must preserve discoverable information.

Connivance defense to divorce

When one party claims they weren't at fault in the divorce because the complaining party consented to their actions (think swingers)

pretextual traffic stops

When police stop someone for a minor traffic violation and then use the stop to search for drugs. Fine as long as they have probable cause as to the traffic violation.

Improvement of Separate property (family law)

When separate property is improved by the use of marital funds or by the efforts of either spouse, courts will grant the marital estate reimbursement for value added.

Voidable Marriage

When some type of event or condition affects the adequacy of the parties' consent. Are treated as valid until they are declared null. Can only be attacked by a party to the marriage, sometimes only by the party whose consent wasn't free. Can be remedied by continually living together after removal of the impediment. Ex: infancy, incurable physical impotence, duress, fraud

Partial Revocation by Physical Act

When testator marks stuff out or changes things in the will without codicil. Most states don't allow it, some states only allow it for certain things (you can take away gifts but you can't give more to someone)

When can a co-conspirator be liable for the acts of another conspirator?

When the act is done in furtherance of the conspiracy and the act was foreseeable.

When Do The Rightsofa Intended Third-party beneficiary vest?

When the beneficiary (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes his position in justifiable reliance on the promise.

Lapse (dead law)

When the beneficiary fails to survive the testator or is legally treated as dying first. First we look to the will (a well-drafted will will indicate what should happen to the property in this scenario). Next, if the state has an anti-lapse statute, use that. Then, it passes by the residual (everything else goes to A). If it is the residual clause that is lapsing, then the property goes by intestacy.

Type 2 Class Action

When the defendant treated class members alike. Cannot seek damages.

When can employers be held vicariously liable for the actions of their employees?

When the employee was acting within the scope of employment. Intentional torts are generally outside the scope of employment unless employee is acting to further employer's purpose

When is a judgment final when deciding claim or issue preclusion?

When the judgment was based on anything EXCEPT jurisdiction, venue, or indispensable parties.

When will estoppel bar revocation of a license?

When the licensee has invested *substantial money, labor or both, in reasonable reliance on the license continuation.

Arrest

When the police take a person into custody against their will for prosecution or interrogation.

Implied Ratification

When the principal accepts the benefits of a contract

Information Defect

When the product has hidden risks that aren't known to users, the product is defective unless it carries adequate warnings and instructions

Ademption by Extinction

When the property bequeathed is not in the testator's estate at the time of death (e.g., it was destroy, sold, etc), the devise is adeemed by extinction. In other words, it fails & beneficiary doesn't get anything.

Design Defect

When the risks associated with the product's design outweigh the utility of the design. Plaintiff must show that (1) an hypothetical alternative design would've been safer, (2) the alternative wouldn't defeat the point of the product, (3) the alternative costs about the same as the design that was marketed (economically feasible)

Ademption by Satisfaction

When the testator has already given something similar to the devisee. The intent for a gift to be in satisfaction has to be at the time the inter vivos gift was made. Also must be in writing for a gift to be in satisfaction.

No apparent ambiguity to will

When the will isn't ambiguous on its face and we can do exactly what it says. Traditionally rule to interpretation says you do what the will says. Modern rule says extrinsic evidence can be brought in to alter the plain meaning.

Successor's Liability

When there is a merger or consolidation, the remaining corporation can be sued by the previous corporation's creditors. Not applicable when a company only buys another's assets unless the buyer is a mere continuation of the seller.

When does the UCC apply to a contract?

When there is a sale of goods

Impeachment on a Collateral Matter

Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter prohibits a party from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement

Type 3 Class Action

Where common questions predominate over individual ones and class action is superior method for handling dispute. Court must give individual notice to all class members that they are in the class. Only class action you have a right to opt out of.

Curtilage

an area of land attached to a house and forming one enclosure with it. Individuals have a reasonable expectation of privacy in their curtilage.

Voting Trust

an arrangement in which the shareholders transfer their stock certificates to a trustee who is empowered to vote the shares. Requirements: (1) written agreement controlling how shares will be voted. (2) Give copy of agreement to the corporation. (3) Transfer legal title to voting trustee. (4) Give original shareholder trust certificates and retain all rights except voting.

Specific Intent

an intention to act and to cause a specific result. Manner in which a crime is committed can provide circumstantial evidence of intent. Solicitation, conspiracy, attempt, first degree premeditated murder, assault, larceny, embezzlement, false pretenses, robbery, burglary, forgery.

Devisable Interest

an interest that may be transferable upon death (passing by will)

Pre-incorporation subscription

an offer to purchase capital stock in a corporation yet to be formed which under many incorporation statutes is irrevocable for six months

Preliminary Injunction

an order issued early in a lawsuit prohibiting a party from doing something during the course of the lawsuit. Preserves status quo until trial. Order granting or denying may be appealed as of right.

Reasonable Suspicion

any information that points to illegal activity and may include rumor, tips, and anonymous telephone calls. Look to totality of circumstances.

Private Adoption

arranged directly between adoptive parents and the biological mother, usually through the assistance of an attorney

Subject Matter Jurisdiction

authority of a court to decide a particular kind of case. Cannot be waived

Lingering Apparent Authority

authority that exists beyond the termination of the agency in relation to third parties who are unaware of the agency termination

Voting by proxy

authorizing someone else to vote the shares owned by the shareholder. Must be in writing & directed to the shareholder of the corporation. Good for 11 months unless it says otherwise.

Rule of Completeness

Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part, or any related writing or recorded statement, that ought in fairness to be considered.

Principal Place of Business

Where the corporation's managers direct, coordinate, and control the business

Unilateral Contract

Where the offeror asks for performance rather than a promise

Power of Appointment (dead law)

Where the owner of property transfers to a donee the power to appoint the new owner of the property. If they don't exercise the power, it goes to the default takers under the power of appointment or it would be a reversion back.

Testimonial Statements

Whether a statement made in response to police interrogation is testimonial depends on its primary purpose: -To aid in ongoing emergency - not testimonial -to provide information for later prosecution - testimonial -affidavits or written reports of forensic analysis - testimonial

Modifying Separation Agreements

Whether you can do it depends on if the agreement is merged into the divorce decree. If the court merges the agreements, the court has authority to modify the agreements under state law. But you can always modify child support and custody agreements.

Race Jurisdiction for recording statutes

Whoever records properly first wins

Tort of disclosure

Widespread dissemination of confidential information about Plaintiff not of legitimate concern to public and highly offensive to reasonable person. Built in newsworthy exception to this.

Revocation by Subsequent Will

Will or codicil will need to meet all requirements we looked at previously. Can be express revocation or by inconsistency (if new will gives the gift you were supposed to receive to someone else)

Voluntary Waste under Tenancy in Common

Willful destruction. Co-tenant can bring action against willful destructor.

Regulation of Foreign Commerce

With a few minor exceptions, the power to regulate foreign commerce lies exclusively with Congress.

Impeachment by Prior Conviction

Witness may be impeached by proof of a conviction for certain crimes. A pending review or appeal doesn't affect the use of a conviction for impeachment.

Impeachment by Sensory Deficiency

Witness may be impeached by showing, either on cross or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts.

What is an "immediate battery" for the tort of assault?

Words alone lack immediacy, must be some action to show that a battery is coming but words can negate immediacy (I would hit you if you weren't my best friend)

Slander per se

Words so clearly defamatory that an ordinary person would understand there would be injury to a victim's good name. Presumed damages.

S Corporation

a form of corporation that avoids double taxation by having its income taxed as if it were a partnership. Federal law has requirements for becoming an S corp: (1) no more than 100 shareholders; (2) all shareholders must be US citizens and human; (3) there is only one class of stock; (4) the company isn't publicly traded

Bequest

a gift of personal property by will

Legacy

a gift of personal property by will, not sufficiently described to be specific. (I leave 10,000 dollars to X).

Tenancy for years

a leasehold interest for a known, fixed period of time. Termination is automatic on end date w/ no notice required. Writing is typically required if greater than a year.

Common Law Marriage

a non-ceremonial relationship that people establish by living together. not all states permit CL marriage but they will recognize CL marriages from other states. Requirements: -Consent to marry -Cohabitation -Hold selves out as spouses (look for legal documents and whether the community considers this couple as married)

Term partnership

a partnership in which the partners agree in advance how long it will last

benefit corporation

a profit-seeking corporation whose charter specifies a social or environmental goal that the company must pursue in addition to profit. Things work the same way in a benefit corporation as they do in a regular corporation.

Covenant against encumbrances

a promise that the property is not encumbered with liens, easements, or other such limitations except as noted in the deed

Liquidated Damages Clause

a provision in the contract that declares in advance what one party will receive if the other side breaches. Upheld if: damages are difficult to estimate at contract formation and the amount is reasonable.

forum non conveniens

a rule that allows a court, in equity, to decline jurisdiction over a case when it believes that the matter would be better resolved in another forum. Based on the same factors as transfer due to proper venue. Forum that is being transferred to must be adequate, meaning some sort of remedy must be available to the plaintiff.

Borrowed Servant Doctrine

a special application of respondeat superior in which an employer lends an employee to someone else. Liability is determined by asking who has ultimate control over the employee

Acceleration Clause

a statement in a credit contract that requires you to repay the entire loan (plus accrued interest plus cost) immediately if you miss a payment

Post-incorporation Subscription

a subscription agreement entered into after incorporation. Can be revoked at any time before acceptance by the corporation

straight voting (noncumulative voting)

a system in which each shareholder votes the number of shares he or she owns on candidates for each of the positions open. This is the default if the articles are silent.

Criminal Conversation

a tort committed by a person who has sexual relations with the plaintiff's spouse. Elements: (1) a valid marriage; (2) adultery. Normally if there is adultery, you bring both the criminal conversation claim and the alienation of affection claim.

UniTrust

a trust in which the current beneficiary is entitled to a fixed percentage of the value of the trust property annually

Revocable Trust

a trust whose terms the settlor retains the rights to change. Trusts are assumed revocable unless expressly made otherwise.

Juror Misconduct

a verdict may be impeached based upon external matters. Bribing, outside activities. Juror cannot testify about things occurring or statements made during jury deliberations

Partnership Agreement

a written agreement among all owners detailing the rules and procedures that guide ownership and operations. Not necessary to form a partnership. Can be written, oral, or implied.

Mutual Mistake

both parties have a common but erroneous belief forming the basis of the contract; renders the contract voidable by either party. Remember difference between mistake about the subject of the item versus the value of the item

Derivative Suits (corporations)

brought by a shareholder on behalf of the corporation to enforce a right belonging to the corporation

Intersovereign Litigation

i. US Gov't may sue a state but not be sued unless Congress has enacted specific legislation allowing it. ii. Federal officers may not be sued unless they acted beyond their authority and specific relief is sought. iii. States may sue each other within the exclusive jurisdiction of the US Supreme Court

When is a choice of law clause in a contract enforceable?

if the provision is valid and express. Might not be valid if the state selected is not relevant to the contract or if the clause was chosen without true mutual assent.

Declaration of Trust

instrument creating an inter vivos trust where the settlor is the trustee.

Fixtures

items of personal property that are attached or annexed to real property with the intent that it becomes a permanent part of the real property. Fixture filings must be filed to have a security interest, needs info from financing statement, description of real property and name of the owner

Second-degree murder

killing done with malice but without premeditation

Servient Land

land burdened by the easement

Non-cumulative zoning ordinance

land may be used only for the purpose for which it is zoned

Alienation of Affection

lawsuits which give a spouse the right to sue a third party for taking the affections of a spouse away. Elements: (1) genuine love and affection between the spouses who are validly married; (2) the love and affection was alienated or destroyed; and (3) the defendant's actions caused the loss of love and affection.

Enabling Legislation

legislation that gives appropriate officials the authority to implement or enforce the law (done to allow local governments to pass zoning ordinances)

Bigamy

marriage to two people at the same time

Ambiguity in Contract

may constitute a mutual mistake of a material fact, no contract. But if one guy should've known, go with the innocent party's interpretation.

Per stirpes

means per family line (one share for each child, including children who died but have descendants) ie if 5 children and 1 dies, then 4 children and the kids of the 5th would get the $.

Complete Diversity

no plaintiff in a case can be from the same state as any defendant in the same case

Factual Impossibility

occurs when actors intend to commit a crime and try to but it's physically impossible because some fact or circumstance unknown to them interrupts or prevents the completion of the crime. NOT a defense to inchoate offenses.

Legal Impossibility

occurs when actors intend to commit crimes, and do everything they can to carry out their criminal intent, but the criminal law doesn't ban what they did

Dissociation of a Partnership

occurs when partner ceases to be associated with partnership; normally entitles partner to be bought out

Nuncupative Will

oral will declared or dictated by testator during last illness before appropriate witnesses to dispose of personal property and afterwards reduced to writing (not valid in all states). Not allowed in most states.

Riparian Owners

owners of land that is located against a body of water

Voluntary Termination of Parental Rights

parents may voluntarily relinquish all rights to their children

Limited Partners in a Limited Partnership

partners in a limited partnership who invest capital but do not participate in management and are not personally liable for partnership debts beyond their capital contributions

Income beneficiary of a trust

person or an entity to be paid income from a trust

Real Evidence

physical evidence - such as a weapon, records, fingerprints, and stolen property

Federal Parental Kidnapping Prevention Act

prevents parents who abduct their children from getting new custody orders in a different state

Riparian Doctrine

private water rights are tied to the ownership of land bordering a natural river or stream. Water belongs to those who own land bordering the watercourse. Riparians share right of reasonable use of the water.

Trust corpus

property held in trust

Forfeiture Restraint

provides that if the grantee attempts to transfer his interest, it is forfeited to another person. This is valid if it is reasonable and limited in time.

Revocation by Operation of Law

revocation that occurs automatically on the occurrence of specified events or circumstances designated by law. Ex: In some states, when decedent got married after the execution of his will, a new spouse can receive an intestate share regardless of whether they are mentioned in the will. -All provisions in favor of an ex-spouse after divorce are void.

Consideration

something of legal value exchanged for something else of value. We don't care about past consideration

Reasonable Expectation of Privacy

standard developed for determining whether a government intrusion of a person or property constitutes a search because it interferes with individual interests that are normally protected from government intrusion. Standing if person owned or had right to possess the place searched, the place searched is the person's home, or the person is an overnight guest of the owner. No right to privacy in the sound of your voice, the style of your handwriting, paint on the outside of your car, account records held by a bank, location of your car on a public street or in your driveway, anything seen across open fields, anything seen from flying over public airspace, odors from luggage or car, garbage set out on curb for collection

Perfect Tender Rule

standard under the UCC that a seller's performance must strictly comply with contractual duties and that any deviation gives buyer the right to reject the goods. If goods don't conform, buyer may reject entire shipment, accept entire shipment, or reject in part, accept in part.

Slayer Statutes

state laws providing that one who is convicted of murdering another cannot inherit from the victim's estate

no-par stock

stock that has no minimum issuance price. Thus the board can have that stock issued for any price that it sets.

Buyers not in the ordinary course of business

take subject to perfected security interests. They take free from unperfected security interests (and unperfected agricultural liens) unless they know of the security interest.

lapse of time termination

terminates after end date specified in offer, terminates after a reasonable time

Winding Up

the actual process of collecting, liquidating, and distributing the partnership or corporation assets. (1) provide written notice to known creditors in a newspaper in county of the PPB. (2) gather all assets. (3) convert assets to cash. (4) pay creditors and then distribute remaining sums to shareholders.

Authorized Stock

the amount of stock that a corporation is authorized to sell as indicated in its charter

Default Judgment

the clerk of the court can enter default judgment if: the defendant made no response, the claim is for a certain sum, the plaintiff gives an affidavit of amount owed, and the defendant isn't a minor or incompetent. There must be a hearing and judge's discretion if clerk can't enter (defendant must be given notice if he has appeared in some way in the case). Recovery is limited by amount in the complaint.

Confrontation Clause

the constitutional right of a criminal defendant to see and cross-examine all the witnesses against him or her

Debtor's Right to Redeem

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

Organizational Meeting

the first meeting of a corporation, held to adopt the bylaws and appoint officers. If the initial directors were named in the articles, they will hold the meeting, if not then the incorporators will hold the meeting.

Endorsement of Religion Test for the Establishment Clause

the government must not appear to endorse or disapprove of religion from the standpoint of a reasonable and informed observer and make religion seem relevant to a person's standing in the political community

Contractual Capacity

the legal ability to enter into a contractual relationship. Needed by the principal but not the agent.

Promissory Estoppel

the legal enforcement of an otherwise unenforceable contract due to a party's detrimental reliance on the contract. Can apply when there is no consideration.

Public Safety Exception to Miranda

the police can interrogate without Miranda warnings when reasonably prompted by concern for public safety.

Knock and Announce Rule

the police must announce their presence and wait approximately 20 seconds before entering a home. However, a violation of this rule won't result in the suppression of evidence.

Diversity Jurisdiction

the power of the federal courts to hear matters of state law if the opposing parties are from different states and the amount in controversy exceeds $75,000

Staggered board of directors

the practice in which only a fraction (usually 1/3) of the board of directors is elected each period

Joint Legal Custody

the retaining by both parents of an equal right to make important decisions concerning their children

privilege against self-incrimination

the right of any person, including one accused of a crime, to remain silent when what might be said could indicate criminal guilt. Applies in any type of case. If they don't claim it in a civil proceeding, they are barred from later claiming it in a criminal prosecution. Protects testimonial or communicative evidence and not real of physical evidence.

Intestacy

the situation that exists when a person dies without a valid will

Testamentary Semi-Secret Trust

the will clearly says "I leave this property in trust to the trustee" but it fails to state who the beneficiaries are. This won't create a trust because we don't know who holds equitable title. The trustee will have to give legal title back to the settlor's successors in interest.

Asportation

to carry property away wrongfully. The slightest movement is enough

Remand

to send a case back to a lower court to be tried again. A plaintiff must move to remand within 30 days if the defect is other than lack of SMJx. Lack of SMJx is never waived.

Inter vivos trust

trust created during the lifetime of the settlor.

exceptions to preexisting duty rule

unforeseen circumstances, additional work, and UCC Article 2 (sale of goods), third party exception

General Verdict

verdict in which a jury decides issues of liability and damages

Breach by Wrongful Eviction

when L wrongfully evicts T or excludes T from the premises without cause. Also applies to partial evictions (ex: ceiling collapses in one room, T is partially evicted from that room). Both relieve tenant of the obligation to pay rent.

Transfer

when the court moves a case to another court in the same judicial system (federal district court to a different federal district court). Venue and personal jurisdiction must be proper in the transferee court WITHOUT waiver

How is a general partnership formed?

when two or more persons associate to carry on as co-owners of a business for profit, regardless of whether the parties subjectively intend to form a partnership. Doesn't require a writing unless the statute of frauds requires a writing.

writ of mandamus

written order from a court to enforce the performance of some public duty

Requirements of Marriage

1.License -Some states require a medical certificate saying a person isn't carrying certain diseases -Most states require a waiting period between getting the license and the marriage. -Failure to meet the procedural requirements of a license WILL NOT invalidate the marriage 2. Ceremony with authorized officiant 3. Absence of a legal impediment to wed (incest, bigamy) 4. Capacity to consent

How to Create a Joint Tenancy

4 unities: T-TIP Joint tenants must take their interests: *T* - at same Time *T*- by the same Title (instrument - deed) *I* - Identical equal interests *P* - with rights to Possess the whole AND must *clearly express the right of survivorship*

Due Process Clauses

5th and 14th Amendment. Provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property. Generally requires intentional or reckless government action.

Right to a jury trial in civil cases

7th Amendment preserves the right to a jury in civil actions at law Civil actions in equity go before a judge. Mixed suits of law and equity --> facts underlying damages tried first before a jury. Then facts relating only to equity claims are tried to judge.

buyer in the ordinary course of business

A buyer who, in good faith and without knowledge that the sale violates the ownership rights or security interest of a third party in the goods, purchases goods in the ordinary course of business from a person in the business of selling goods of that kind takes free of a security interest created by his/her seller

Class Action suit

A case brought by representatives that sues on behalf of a group. For diversity jurisdiction, only the citizenship of the class rep is considered and her claim must exceed $75,000

Breach of a promise to marry

A cause of action based on breaking off an engagement to marry. Provides for tort damages: actual damages and any emotional or loss of reputation damages.

How can a criminal defendant prove character?

A character witness for the defendant may testify as to the defendant's good reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant

Posthumous Child

A child born after the death of one of its parents. Some states require that the child be in utero at the time of death to be able to inherit intestate, other states give a time limit of 18 months or two years.

Time is of the essence clause

A clause in a contract that emphasizes punctual performance as a requirement of the contract. Makes late performance a material breach.

The Year and a Day Rule

A common law requirement that homicide prosecutions could not take place if the victim did not die within a year and a day from the time that the fatal act occurred. Abolished in most states.

foreign corporations

A corporation in any state except the state in which it is incorporated. Must qualify and pay prescribed fees to operate in a state other than the state they are incorporated in.

Entity Status

A corporation is a legal person. It can sue and be sued, hold property, be a partner in a partnership, invest in other companies or commodities.

Facts appropriate for judicial notice

A court may take judicial notice of any fact that is not subject to reasonable dispute because -The fact is generally known within the trial court's jurisdiction or -The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned

Class Action Certification

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

Medical Exams

A court order is required to compel a party or a person in the party's custody or control to submit to a medical exam. Requesting party must show the health is in actual controversy and good cause.

Doctrine of Changed Conditions

A court won't enforce the terms of an equitable servitude if the surrounding neighborhood has been irrevocably changed as to obviate the purpose for the restriction. Must demonstrate the entire area's central character has been forever altered.

Personal Jurisdiction

A court's authority over the parties to a lawsuit. Because the plaintiff filed suit, court automatically has personal jurisdiction over them. Must fall within a state statute and must satisfy the Constitution

Valid reasons for a declarant to be unavailable for 804 Hearsay Exceptions

A declarant is unavailable if they -Are unable to testify due to death or physical or mental illness -Are exempt from testifying because of privilege -Refuse to testify concerning the statement despite a court order -Testify that they don't remember the subject matter -Are absent and the proponent is unable to procure their attendance or testimony by process or other reasonable means.

General Warranty Deed

A deed which warrants against all defects in title (including by grantor's predecessors). Contains six covenants for title: seisin, right to convey, against encumbrances, quiet enjoyment, warranty, further assurances

Durham Test

A defendant is entitled to acquittal if the crime was the product of mental illness.

Permissive Counterclaim

A defendant's claim against a plaintiff that a defendant is allowed, but not required to make; applies when the counterclaim doesn't arise from the same transaction or occurrence as the plaintiff's claim.

Compulsory Counterclaim

A defendant's claim against a plaintiff that must be brought in the lawsuit or is forever barred. Applies if the claim arises from the same transaction or occurrence as the plaintiff's claim.

Unconscionability in Contract Formation

A defense that may allow a party to potentially avoid a contract on the grounds that she suffered a grossly unfair burden that shocks the objective conscience (tested at the time of formation)

Shopkeeper's Privilege

A defense to the tort for storeowners; allows reasonable detention of shoppers upon reasonable suspicion of shoplifting.

Demonstrative Gifts

A demonstrative gift is a hybrid of a specific and general gift where the testator makes a general gift (a specific amount of money), but also identifies the specific source the gift should come from.

Director's Duty not to usurp corporate opportunity

A director of a corporation cannot take an opportunity available to the corporation for their own benefit until (1) he tells the board about it and (2) he waits for the board to reject that opportunity

Piercing the Corporate Veil

A doctrine that says if a shareholder dominates a close corporation and uses it for improper purposes, a court of equity can disregard the corporate entity and hold the shareholder personally liable for the corporation's debts and obligations. Look for alter ego fact pattern & undercapitalization. Courts are more willing to pierce the corporate veil for tort victims.

Equitable Conversion

A doctrine under which a buyer who signs a real estate contract is immediately regarded as the equitable owner of the real property, while the seller has an equitable interest in the purchase price. Means that the buyer bears risk of loss in the interim between contract and closing.

Res Ipsa Loquitur

A doctrine under which negligence may be inferred simply because an event occurred, if it is the type of event that would not occur in the absence of negligence. Literally, the term means "the facts speak for themselves."

Ancient Document

A document can be authenticated by evidence that it: -Is at least 20 years old when offered into evidence -Is in a condition that creates no suspicion as to authenticity; and -Was found in a place where such a writing would likely be kept

Living will

A document that indicates what medical intervention an individual wants if he or she becomes incapable of expressing those wishes.

Omission as Actus Reus

A failure to act can constitute actus reus if: 1. D had a specific legal duty to act; 2. D had knowledge of facts giving rise to the duty 3. It was reasonably possible for D to perform the duty

Express Preemption

A federal law may expressly say that the states may not adopt laws concerning the subject matter of the federal legislation.

Commerce Power

A federal law regulating interstate commerce must either: 1) Regulate the channels of interstate commerce, 2) regulate the instrumentalities of interstate commerce, 3) regulate activities that have a substantial effect on interstate commerce

Fee Simple Determinable

A fee simple estate qualified by a special limitation. Terminates automatically on happening of stated event. Language used to describe limitation includes the words so long as, while, until, or during. Devisable, descendible, alienable (but the condition follows no matter where it goes).

Tenancy in Common

A form of concurrent ownership where two or more persons hold separate titles in the same estate (own individual part and right to possess whole). May have equal or unequal shares. No right of survivorship. Devisable, descendible, alienable

Joint Tenancy

A form of concurrent ownership, which occurs when two or more persons own a single estate in land, with right of survivorship. Must have equal shares. Alienable inter vivos.

Future Covenants

A future covenant is not breached, if ever, until grantee is disturbed in possession. Thus, the statute of limitations for breach of a future covenant will not begin to run until that future date.

Springing Executory Interest

A future interest that cuts short the interest of the grantor. "O conveys to A if and when she becomes a lawyer."

Regulatory Taking

A government regulation that effectively takes land by restricting its use, even if it remains in the owner's name unless principles of nuisance or property law make the use profitable.

Actus Reus

A guilty (prohibited) act. Defendant must have performed a voluntary physical act, or, in some cases, failed to act when there was a duty to act.

Penal Judgment

A judgment that punishes an offense against the public. AKA the State is proceeding against someone as the plaintiff in a civil judgment. Not enforceable under full faith and credit.

Partition in Kind

A judicial order to divide the property physically and place each undivided owner in sole ownership of 100% of a portion of said property

When does a law discriminate against religion

A law is discriminatory if it is either: not neutral facially with respect to religious belief, conduct, or status, or not generally applicable but instead targets religion generally or a religion in particular

Periodic Tenancy

A lease interest in land that continues for successive intervals until properly terminated

Medical Power of Attorney

A legal document signed by a person who is giving another individual the power to make health care decisions for the first person if he or she becomes incompetent, unconscious, or unable to make decisions for himself or herself.

Fiduciary Duty

A legal obligation of one party to act in the best interest of another. Includes Duty of Care and Duty of Loyalty.

Life Estate Pur Autre Vie

A life estate in one person with another person serving as the measuring life. "to A while B lives."

Special Use Permit

A list of uses that are deemed appropriate and allowable pursuant to the zoning scheme. However, because these uses present safety concerns, we want to be sure they comport with a checklist of safety-based criteria. Think hospital, gas station, funeral home.

Privilege Log

A log describing discovery documents the production of which is objected to by the answering party because they are privileged.

Spousal Immunity

A married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. A married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether the spouse is the defendant. Must be a valid marriage for the privilege to apply and only lasts for the extent of the marriage (what matters is whether the spouses are married at the time of trial). The privilege is held by the witness-spouse, meaning they cannot be compelled to testify but may choose to do so.

Judicial Dissolution of LLC

A member can apply for judicial dissolution. They go into court and ask the court to order dissolution. Grounds that a court can grant dissolution: -If the conduct of all or substantially all of the LLC's conduct is unlawful. -If it isn't reasonably practical to carry on the company's activities in conformity with the certificate of organization and the operating agreement. -If the managers or members in control of the LLC have acted, are acting, or will act in a manner that is illegal or fraudulent, or have acted or are acting in a manner that is oppressive and was, is, or will be directly harmful to the member applying for dissolution.

Motion for New Trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice. Must be done within 28 days of the entry of judgment.

Motion for a more definite statement

A motion made in response to a complaint in which the defendant challenges the clarity or specificity of the complaint.

Motion for Summary Judgment

A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute. Court views evidence in the light most favorable to the non-moving party. Any party can move for summary judgment no later than 30 days after the close of discovery.

Motion to strike

A motion to eliminate certain allegations from a complaint, usually because they are redundant or immaterial.

Intervention

A nonparty brings herself into a case. Can choose to come in as plaintiff or defendant. Application must be timely.

What is a partner's right to use partnership property?

A partner is not a co-owner of partnership property and has no interest in partnership property that can be transferred. Partner can simply use partnership property for partnership purposes.

Partnership by Estoppel

A partnership imposed by a court when nonpartners have held themselves out to be partners, or have allowed themselves to be held out as partners, and others have detrimentally relied on their misrepresentations.

General Partnership

A partnership in which all owners share in operating the business and in assuming liability for the business's debts. The law views the partnership as a legal entity separate from all the partners. Partners don't get a salary. Partners are viewed as agents of the partnership

Limited Partnership

A partnership with at least one general partner and at least one limited partner. General partnership provisions apply unless they are replaced by limited partnership-specific provisions

At will partnership

A partnership with no stated term of continuation or existence (default)

Impossibility/Impracticability

A party may be excused when performance becomes either impossible or impracticable through a later unforeseen event that is not the fault of either party. If performance is made illegal by subsequent government regulation, performance is impossible.

Preserving Claim of Error for Appeal

A party may claim error in the court's ruling if it affects a substantial right of the party.

Indispensable Party

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

Terry Frisk

A pat down of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous. The officer may seize any item that it the officer reasonably believes, based on plain feel, is a weapon or contraband.

Dissociation from LLC

A person has the power to dissociate as a member of an LLC at any time, rightfully or wrongfully, by expressly withdrawing as a member. Events that will cause dissociation of a partner in a partnership will also cause dissociation of an LLC member.

What duty does a property owner owe trespassing children?

A person in possession of property owes a trespassing child a duty of reasonably prudent care under the circumstances to protect child from artificial hazards.

Disclaiming property

A person inheriting can say they don't want the property and they won't get it. Must be in writing & signed by disclaiming person. Often must be acknowledged in front of a notary & timely filed. If someone disclaims, in dividing the estate, we treat them as if they died first. Can disclaim intestate property, testate property, and to be a trust beneficiary

Double Jeopardy Clause

A person may not be retried for the same offense once jeopardy has attached

Deadly Force in Self-Defense

A person may use deadly force in self defense if: the person is without fault, is confronted with unlawful force, reasonably believes they are threatened with imminent death or great bodily harm

Defense of a Dwelling

A person may use nondeadly force in the defense of their dwelling to the extent that they reasonably believe that such conduct is necessary to prevent or terminate another's unlawful entry or attack upon their dwelling.

The Shelter Rule

A person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor. Thus, even if the taker had notice of the prior conveyance, as long as the original bona fide purchaser didn't have notice, the taker is still considered a BFP

Withdrawal from Accomplice Liability

A person who withdraws from the crime before it becomes unstoppable cannot be held guilty as an accomplice. Must repudiate encouragement, must attempt to neutralize any assistance. Notifying police or taking other action to prevent crime is also sufficient.

What is considered a statement? (hearsay)

A person's (1) oral or written assertion, or (2) nonverbal conduct intended as an assertion.

Voluntary Dismissal Without Court Permission

A plaintiff may withdraw a case without court order if the defendant hasn't filed answers or motion for summary judgment. Parties may also stipulate to a voluntary dismissal without a court order.

What does an offer create?

A power of acceptance in the offeree and a corresponding liability in the offeror

Present covenants in general warranty deed

A present covenant is breached, if ever, at the moment of delivery. Thus, the statute of limitations for a breach of a present covenant begins to run from the instant of delivery.

Present Sense Impressions Exception

A present sense impression is a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition.

Motion in limine

A pretrial motion requesting the court to prohibit the other side from presenting, or even referring to, evidence on matters said to be so highly prejudicial that no steps taken by the judge can prevent the jury from being unduly influenced.

Undisclosed Principal

A principal whose identity is unknown by a third person, and the third person has no knowledge that the agent is acting for a principal at the time the agent and the third person form a contract.

Covenant of right to convey

A promise in a deed that the grantor has the legal capacity to convey the title. There are no temporary restraints on alienation

Negative/Restrictive Covenant

A promise not to do something (I promise not to build for commercial purposes)

What is a Contract?

A promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.

Equitable Servitude

A promise that equity will enforce against successors of burdened land (regardless of whether it runs with land at law). Accompanied by injunctive relief.

Covenant of Quiet Enjoyment

A promise that no one has superior or paramount title to that of the grantor; assures the grantee of peaceful possession without fear of being ousted by a person with a superior claim to the property.

Covenant of Warranty

A promise that the grantor will defend the grantee against any claim of superior title

Affirmative Covenants

A promise to do something related to land (I promise to maintain our shared fence)

What duty does a property owner owe an unknown trespasser?

A property owner owes no duty to a trespasser with three exceptions.

Forum Selection Clause

A provision in a contract designating the court, jurisdiction, or tribunal that will decide any disputes arising under the contract. If one party sues the other in violation of that clause, the defendant may seek to enforce it through a motion to transfer. Federal law enforces these as long as they aren't unreasonable. Transferee court applies its own choice of law rules.

Bona Fide Purchaser

A purchaser (didn't take by gift, will, or inheritance) who takes title in good faith, with no knowledge of competing claims to title.

Content-Based Speech Regulations

A regulation is content-based if it restricts speech based on the subject matter or viewpoint of the speech. Subject to strict scrutiny, and they are presumptively unconstitutional unless they fall within one of the categories of unprotected speech, like obscenity.

Overbroad Regulation

A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary

Use of Learned Treatises During Examination

A relevant excerpt from a treatise, periodical, or pamphlet may be used during expert testimony. Can be used to impeach experts and as substantive evidence. (1) Treatise must be established as reliable authority; (2) the excerpt must be used in the context of expert testimony; and (3) the excerpt is read into evidence but cannot be received as an exhibit

Motion

A request for a court order

Purchase Money Resulting Trust

A resulting trust in which property is purchased and paid for by one person, and at his direction, the seller transfers possession and title to another person and that other person is supposed to hold that property for you.

Inception of title rule

A rule fixing title at the time an asset is acquired

Comparative Negligence

A rule in tort law, used in the majority of states, that reduces the plaintiff's recovery in proportion to the plaintiff's degree of fault, rather than barring recovery completely. Defendant must show Plaintiff failed to exercise proper care for their own safety.

Harmless Error Rule

A rule stating that an error made by the trial court does not lead to a reversal if the error did not affect the outcome of that case.

Business Judgment Rule

A rule that immunizes corporate management from liability for business decisions that turn out poorly if they were made in good faith, informed, and had a rational basis.

Lost-Volume Seller

A seller who could have produced more of an item and sold it to a new buyer can sue a defaulting buyer to recover the profit it would have made from the defaulting buyer. If seller's supply of goods is unlimited, then he is a lost-volume seller and the lost profits measure can be used.

Good Samaritan Laws

A series of laws, varying in each state, designed to provide limited legal protection for citizens and some health care personnel when they are administering emergency care.

Aggregation of Claims for Amount in Controversy

A single plaintiff may aggregate all claims against a single defendant. Cannot aggregate claims against another defendant or by another plaintiff. If there are joint claims, we don't care about how many tortfeasors there are, anyone can be held liable, 75K+ against all is enough

uninvited ear doctrine

A speaker has no 4th Amendment claim if they make no attempt to keep their conversation private.

Preferred Stock

A special type of stock whose owners, though not generally having a say in running the company, have a claim to profits before other stockholders do.

Record Date

A specific date on which the company will determine the registered owners of stock and, therefore, who will be able to vote.

State Taxation and Regulation of Federal Government

A state may not directly tax federal instrumentalities without the consent of Congress. However nondiscriminatory indirect taxes are permissible if they don't unreasonably burden the federal government.

Market Participant Exception to the Dormant Commerce Clause

A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses.

Documents Affecting Property Interests Exception

A statement in a document affecting an interest in property is admissible if the statement is relevant to the document's purpose.

Statements Against Interest Exception

A statement of a person, now unavailable as a witness, may be admissible if it was against that person's pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant's position would have made it only if they believed it to be true.

Present State of Mind Exception

A statement of the declarant's then-existing state of mind or their emotional, sensory, or physical condition is admissible. State of mind includes statements about the declarant's intent to do something in the future, including the intent to engage in conduct with another person

Statements made for purposes of medical diagnosis or treatment

A statement that describes a person's medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for medical diagnosis or treatment.

Personal Student Speech on Campus

A student's own personal speech on campus cannot be censored absent evidence of substantial disruption. Exception: speech promoting illegal drug use doesn't require showing any disruption or credible threat of disruption.

cumulative voting

A system of shareholder voting where there is one at-large election and the top X number of finishers are elected to the board. To determine voting power, multiply the number of shares times the number of directors to be elected.

Emergency Exception to the Taking Clause

A taking is less likely to be found, even for a complete and permanent deprivation, if it's made pursuant to a public emergency, such as war.

Revocation by Physical Act

A testator can revoke a will by burning, tearing, canceling destroying or obliterating it with the intent to revoke. Requirements: -testator intends to revoke -actual physical act by testator (burning, tearing, drawing lines through it). Proxy act is fine if it is done at testator's request and in their presence.

Intended Beneficiary

A third party for whose benefit a contract is formed (generally named). An intended beneficiary can sue the promisor if such a contract is breached. Contract can be rescinded or modified until the beneficiary's rights have vested

incidental beneficiary

A third party who incidentally benefits from a contract but whose benefit was not the reason the contract was formed. An incidental beneficiary has no rights in a contract and cannot sue to have the contract enforced.

Testamentary Trust

A trust created by will. All the requirements of a valid will must be effective first before the trust is valid.

Charitable Trust

A trust in which the property held by a trustee must be used for a charitable purpose to benefit the community, such as the advancement of health, education, or religion. Court decides what qualifies as charitable by deciding what is generally considered charitable in the community.

Irrevocable Trust

A trust that, once set up, the settlor may not revoke. Must make trust irrevocable in the trust agreement.

Tenancy at Will

A type of tenancy that either the landlord or the tenant can terminate without notice, no fixed duration.

Nonconforming Use (property)

A use of property that is permitted to continue after a zoning ordinance prohibiting it has been established for the area. Previously allowed use cannot be eliminated all at once unless just compensation is paid.

Field Preemption

A valid federal law may impliedly occupy the entire field, thus barring any state or local law even if the state or local law is nonconflicting.

Republication by Codicil

A validly executed will is treated as re-executed as of the date of the codicil

Special Verdict

A verdict in which the jury makes findings only on factual issues submitted to them by the judge, who then decides the legal effect of the verdict

Proper method of voice identification

A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.

Facts of independent significance

A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some future unattested act occurring after execution of the will. Ex: I leave the car I own at my death to my son. Can go outside the will to figure out what car that is.

Pour over will

A will that leaves some or all estate assets to a trust established before the will-maker's death. Valid as long as the trust is in existence at the time of death.

Holographic Will

A will written entirely by the testator with his own hand. Valid everywhere. In half of the states, if the will is in the testator's handwriting, there is no need for witnesses.

Impeachment by opinion or reputation evidence of untruthfulness

A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness. This is accomplished by calling a character witness to testify about the target witness's bad reputation or the character witness's low opinion of the target witness.

Impeachment Methods

A witness may be impeached either by cross-examination or extrinsic evidence

Reply Letter Doctrine

A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author

Subscriptions (biz orgs)

A written offer to buy stock from a corporation

Special standard of care for professionals

AKA for malpractice claims. Must exercise the same care as an average member of their profession providing similar professional services.

Claim Preclusion

AKA res judicata. Prevents a party from relitigating against the same party any matter that was part of the same claim or cause of action adjudicated in the 1st action

Intervention of Right

Absentee's interest may be harmed if she is not joined and she isn't adequately represented by the current parties.

Public Necessity defense

Absolute defense to property torts. Applies when a defendant acts in emergency to protect the community.

Standard of Review for Judge's rulings on discretionary matters

Abuse of discretion standard

Mailbox Rule

Acceptance is effective when sent, not when received

Uniform Principal and Income Act

Act adopted by most states that details how principal and income should be allocated by a trustee. Can be altered by settlor but these are the default.

Attempt

Act done with intent to commit a crimes that falls short of completing it

Exclusive Public Functions

Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them.

Types of Notice for buyers of real property

Actual Notice: second-comer learns of the first-comer Inquiry Notice: second-comer is charged with what inspection would've revealed. Record Notice: second-comer is on notice of all deeds properly recorded in chain of title

Forms of notice for equitable servitude.

Actual: literal knowledge Inquiry: neighborhood conforms to the commonly imposed residential restriction Record: public documents

When is habit and business routine evidence admissible?

Admissible as circumstantial evidence that the person acted in accordance with the habit on the occasion at issue in the case. To be admissible must look at the (1) frequency of the conduct and (2) particularity of the circumstances

Former Testimony of a Witness

Admissible if -The witness is unavailable -The testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case; and -the party against whom the testimony is being offered had an opportunity and similar motive to develop the declarant's testimony at the prior proceeding

Statute of Frauds Exceptions

Admission: Statement made in court, under oath, or at some state during a legal proceeding in which defendant admits that oral contract existed (even though contract was originally required to be in writing) Full Performance of Service Contracts Promissory Estoppel: Legal enforcement of otherwise unenforceable contract, due to party's detrimental reliance on contract Goods accepted, goods paid for, substantial beginning on custom goods Merchant Confirmatory Memo: merchants agree to contract, one party sends signed writing containing quantity terms, no objection by recipient within 10 days

Uniform Premarital Agreement Act

Adopted by 27 states. Allows parties to make agreements about property and alimony in the event of death or divorce. Can agree to keep property separate, can agree to waive alimony as long as it doesn't render the dependent spouse a public charge. The court is not bound by provisions regarding children.

Inheritance rights of adopted children

Adopted persons are entitled to full inheritance rights as if they were born of the decedent's marriage. An adopted person may inherit from both his biological and adoptive parents, but the biological parents may not inherit from the adopted person.

Commercial Speech

Advertisements, promotions of products and services, brand marketing. Not protected if it is (1) false, (2) misleading, or (3) about illegal products or services. Any other regulation of commercial speech will be upheld only if it: Serves a substantial government interest, Directly advances that interest, and is narrowly tailored to serve that interest.

Exceptions to Good Faith Reliance on Defective Warrant

Affidavit is so lacking that no reasonable officer would rely on it Magistrate is biased and wholly abandoned neutrality Officer or prosecutor lied to or misled magistrate

Standard of Review for Jury's Finding of Fact

Affirmed unless reasonable people could not have made the finding

Revival of a Will

After will has been revoked, action by testator intended to reestablish validity of that will. Three approaches to determine whether the will is revived: Intent approach, revival approach, no-revival approach

Duty of Obedience in Agency Relationship

Agent must obey all reasonable directions of his principal.

Duty of Care in Fiduciary Duty

Agent owes a duty to a principal to carry out her agency with reasonable care. This is a sliding scale depending on any special skills the agent has

Anticipatory Repudiation

An assertion or action by a party indicating that he or she will not perform an obligation that the party is contractually obligated to perform at a future time. Non-breaching party doesn't have to fulfil its obligations & can sue immediately for breach. Repudiations can be retracted if not relied on.

Specific Performance

An equitable remedy requiring a party to carry out the terms of a contract. Only available if the legal remedy is inadequate and it is feasible to enforce performance.

Fee Simple Subject to Condition Subsequent

An estate carrying the limitation that, if it is no longer used for the purpose conveyed, it reverts to the original grantor by the right of reentry.

Definition of a Duplicate for the Best Evidence Rule

An exact copy of an original made by mechanical means (for example, a photocopy or carbon copy)

Proper Factual Basis for Opinion Testimony by Expert Witness

An expert's opinion must be supported by a proper factual basis. Can be based on -Facts based on the expert's own personal observation -Facts made known to the expert at trial -Facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field.

Right to Interstate Travel

An individual has a fundamental right to travel from state to state and to be treated equally after moving into a new state.

Conversion

An intentional interference with the plaintiff's personal property that is so serious that the defendant should pay the property's full value

Descendible Interest

An interest that can pass to heirs through the statutes of intestacy.

Advancement (dead law)

An irrevocable gift intended by the donor as a pre-payment of an intestate share. Most states require proof to be in writing. If the advancee wants to share in the estate, they must account for the advancement

writ of prohibition

An order by a higher court directing a lower court not to do something.

Excited Utterances Exception

An out-of-court statement relating to a startling event, made while under the stress of the excitement from the event

Hearsay within Hearsay

An out-of-court statement that incorporates other hearsay within it. Admissible only if both the outer hearsay statement and the inner hearsay statement fall within an exception to the hearsay rule

Probable Cause

Any arrest must be based on probable cause. Consider the totality of the circumstances.

Counterclaim

Any claim back against complaining party. Response required within 21 days of service.

Temporary Emergency Jurisdiction for Child Custody

Any court in a state where the child is physically present may exercise temporary emergency jurisdiction to protect the child or if the child has been abandoned.

Felony Murder Rule

Any death caused in the commission of, or in an attempt to commit, a felony is murder.

Seizure

Any exercise of control by a government agent over a person or a thing. Ask if a reasonable person would not feel free to decline officer's requests or terminate the encounter.

What counts as a signature in determining if a will is valid?

Any mark made with present intent to authenticate the will. If there is a signature by a proxy, it will be allowed if it is in the testator's presence and at the testator's direction.

Who can serve process?

Any nonparty who is at least 18. Does not need to be appointed.

Who has the authority to consent to a search of a home?

Any person with apparent equal right to use or occupy the property may consent. An occupant can't give valid consent when co-occupant is present and objects. If co-occupant is removed for an unrelated reason, the police may act on the consent of the remaining occupant.

Waiver of Testimonial Privileges

Any privilege is waived by: -Failure to claim the privilege -Voluntary disclosure of the privileged matter by the privilege holder; or -A contractual provision waiving in advance the right to claim a privilege

Citizenship of Corporations

Any state or country where incorporated AND one state or country where PPB is

What is a defamatory statement?

Any statement that adversely affects the plaintiff's reputation. Pure statements of opinion aren't defamatory because it isn't subject to an empirical test.

Business Records Exception

Any writing or record made as a memorandum of any act, event, condition, opinion, or diagnosis is admissible in evidence as proof of that occurrence if these elements are met: -Business includes every business, organization, occupation, or calling -the record was made in the regular course of business -the business must regularly keep such records -The entry must be made at or near the time of the event -The business record must consist of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant -authenticity of the record must be established by a sponsoring witness, who can be a custodian of records or any person in the business who is knowledgeable about the business's recordkeeping

Shelter Rule

Anyone who takes from a bona fide purchaser will prevail against any interest the bona fide purchaser would've prevailed against

6th Amendment Right to Counsel

Applies to all critical stages of prosecution after judicial proceedings have begun. Prohibits police from talking to suspect without lawyer unless defendant waives the right to counsel. Offense specific, so defendant can be questioned about unrelated, uncharged offenses without violating the Sixth Amendment

Cy pres doctrine (trusts)

Applies when a specific charitable purpose indicated by the settlor is no longer possible or practical, and the settlor manifested a general charitable intent In such a case, the court can direct that the trust property be applied to another charitable purpose as close as possible to the original one, rather than permit the trust to fail and become a resulting trust

One Person, One Vote Principle (state and local governments)

Applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts. For state and local elections, the populations of voting districts must be substantially equal. State must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest.

Selecting a Choice of Law when dealing with real property

Apply the law of the situs

Trustee

Appointed person with legal title over property held in trust. Don't get any benefit from the property in the trust. Owes a duty of loyalty to the beneficiaries to exercise the utmost good faith in all matters pertaining to the trust.

Inheritance of Nonmarital Children

Aren't treated differently with regards to a mother. Some states require additional requirements for inheritance from a father. Ex: DNA testing, determinations of paternity, father acknowledging the child, etc.

Resulting Trust

Arises from implication because of the settlor's conduct. We impose a trust relationship even though the settlor didn't say it because we want to carry out the settlor's intent. Can only benefit the settlor or the settlor's successors in interest. Purpose is to do what the settlor would've done if we could ask them what they would've done in this situation.

Equal Protection Clause

Arises whenever the government treats people differently from others. If a law treats a person or class of persons differently from others, usually an equal protection issue.

Authentication of Writings and Spoken Statements

As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is.

President's War Powers

As commander in chief, the President can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property.

Necessary and Indispensable Parties

Ask if the absentee is necessary, then ask if the absentee can be joined. If absentee can't be joined, ask if the case can proceed without the absentee.

How much risk reduction is required to not violate your duty of care to others?

Ask what a hypothetical reasonably prudent person acting under similar circumstances would do. Objective standard that gives no allowance for shortcomings.

Determining custody for Miranda

Ask whether a reasonable person would feel free to terminate the interrogation and leave. If so, ask whether the environment presents the same inherently coercive pressures as a stationhouse questioning.

Solicitation

Asking another person to commit a crime, with intent that the person commit it. When the other person agrees, it merges with conspiracy and the solicitation goes away.

Survival (dead law)

Asks how long a heir has to survive the intestate to claim a share. Some states say a fraction of a second is enough, most states impose a 120 hour period.

Publication Requirement (dead law)

Asks whether witnesses to an attested will must know they are witnessing a will. States vary.

Aggravated Assault

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

Offer of Judgment

At least 14 days before trial, let's say D offers to pay $50,000 to settle P's claim. P can accept and judgment will be entered for that amount. Suppose P rejects it and goes to trial and wins a judgment that is not more favorable than the offer, P is liable to D for D's costs incurred after the offer was made.

Partially Undisclosed Principal

At the time of the transaction, the third party has notice that the agent is an agent, but not who the principal actually is

Class gifts in trusts

At the time the property will be distributed, class membership must be ascertainable.

Rule 11 Certification

Attorney or pro se party must sign all papers except discovery documents. Signing certifies that to the best of knowledge or belief after reasonable inquiry submission is based on; (1) good faith: not for improper purpose (2) good facts: based on evidentiary support (3) good law: warranted by existing law or presents a non-frivolous argument for a change in existing law • Continuing certification each time advocated in court.

Express Actual Authority

Authority conveyed by the principal in words.

Actual Authority

Authority that an agent reasonably believes she possesses based on the principal's dealings with her. If the principal's words or conduct would lead a reasonable person in the agent's position to believe she had this authority, then there is actual authority.

Implied Actual Authority

Authority that the agent reasonably believes she has as a result of the principal's actions.

Qualified privilege defense to defamation

Available on a case-by-case basis when there is a public interest in encouraging candor. Person invoking the privilege must have had a reasonable good faith basis for making the statement, and the statement must be relevant in scope. (recommendation letters are subject to qualified privilege)

Protective Orders

Available to prevent annoyance, embarrassment, oppression, or undue burden or expense. Remedies include 1) prohibiting discovery 2.) limiting terms of discovery 3) ordering that trade secret or confidential info may not be disclosed or designating the form of its disclosure.

MPC Mental State: Knowingly

Aware conduct is of particular nature or certain circumstances exist

Economic Duress

Bad guy making an improper threat (I won't honor the K unless you do X), vulnerable guy has no other option but to agree to the terms (call other suppliers to try and mitigate damages)

Pay on death property

Bank accounts and corporate securities may be held in POD form so the property passes to the designated person upon owner's death

Civil Rights Act

Bars racial or ethnic discrimination in the sale or rental of all property.

Does the benefit of a covenant run with the land?

Basically, does beneficiary of covenant's successor have standing to enforce covenant? Need Writing Intent Touch & Concern Vertical Privity

Aggravated Battery

Battery with a deadly weapon, battery resulting in serious bodily harm, battery of a child, woman, or police officer

Divorce for Adultery

Because it is hard to provide actual evidence of adultery, must generally prove opportunity and inclination

Alienage Classifications

Because of Congress's plenary power over aliens, federal alienage classifications are not subject to strict scrutiny. Such classifications are valid if they are not arbitrary and unreasonable. However, state/local laws on alienage are suspect classifications subject to strict scrutiny.

Pre-Viability Rule

Before viability, a state can regulate (but it cannot prohibit) abortion to protect the woman's health or the life of the fetus. But the regulation must not place an undue burden to the woman's right to obtain an abortion.

Qualified Beneficiary

Beneficiaries who are either the current beneficiary or first-line remainder beneficiary. If the trust ended today, that person would be a beneficiary

Easement Appurtenant

Benefits holder in use/enjoyment of own land. Dominant parcel derives benefit and servient parcel bears burden.

Priority over deposit accounts

Best: when secured creditor is a co-owner of an account Middle: account is at the bank and the bank has the security interest Lowest: control agreement

Creation of a committee in board of directors

Board can delegate certain decisions to a committee of one or more directors but a committee cannot (1) declare a distribution; (2) fill a board vacancy; or (3) recommend a fundamental change to the shareholders.

Exceptions to statute of limitations choice of law rule

Borrowing statutes: some states have statutes saying where the forum state isn't applying its own law, the state will use whichever statute of limitations is shorter for the claim (as opposed to the general rule of applying the forum state's SoL) Limitations that Condition Substantive Rights: If the forum state is applying a statute from another state, it should apply the whole statute (including limitations like SoL)

Fundamental Corporate Change: Mergers and consolidations

Both companies need board action, notice to shareholders, then shareholder approval generally from both corporations. Requires majority of shares entitled to vote. surviving corporation delivers articles of merger or consolidation to the Secretary of State. Surviving corporation gets all rights and liabilities of previous corporations

Jury Instructions

Both sides submit proposed jury instructions to judge. Judge must tell parties what instructions it will give and what instructions were refused. Party must object on the record and objection must be before the jury is charged.

Common Law Burglary

Breaking and entering of a dwelling of another at nighttime with intent to commit a felony therein. The intent must coincide with the breaking and entering.

Exceptions to the Parol Evidence Rule

Bringing in the evidence to add to a partially integrated writing, establish a defense against formation not contradicting the writing, to explain a vague term, to correct a clerical error

Common Nucleus of Operative Fact

Broader than the same transaction or occurrence test. Need some factual overlap that this claim and the underlying case.

Parentage Action

Brought to establish a biological relationship and settle issues of paternity. Once parentage is established, the parent owes support and has rights of custody and visitation

Duty of Loyalty owed by a director to the corporation

Burden is on the defendant in this case because anytime a director is putting herself in a position of conflict, she must prove that she didn't do anything wrong. Look for self-dealing, competing ventures, corporate opportunity

Duty of Care owed by a director to their corporation

Burden is on the plaintiff. Liable only if the plaintiff shows that the director's breach caused a loss to the company. Look for nonfeasance and misfeasance (board makes a decision that hurts the business that don't violate the business judgment rule)

What felonies can lead to felony murder?

Burglary, arson, robbery, rape, kidnapping

When are goods accepted under a contract?

Buyer accepts goods if they: indicate goods conform to contract, indicate they'll keep nonconforming goods, fail to reject within reasonable time, fail to notify seller of rejection, act inconsistent with seller's ownership

Implied Warranty for Fitness for a Particular Purpose

Buyer comes in with special purpose, seller knows of special purpose, seller picks out goods fit for buyer's special purpose.

Implied Acceptance of Goods

Buyer keeping goods after having a reasonable opportunity to inspect.

Requirements Contract

Buyer promises to buy from a certain seller all the goods that the buyer requires and the seller agrees to sell that amount to the buyer

How is an LLC formed?

By Filing Articles of Organization with the Secretary of State. Information required is the name of the LCC, address of the LLC's registered office, name and address of the registered agent.

How can a unilateral contract be accepted?

By completing (not just beginning) the requested performance. Beginning performance creates an option K

How can a bilateral contract be accepted?

By doing whatever the offeror has said acceptance can be. If the offeror doesn't specify, offeree can accept by any reasonable manner.

When does a Legal Duty to Act arises (criminal law)

By statute By contract Relationship between parties (parent and child) Voluntary assumption of care Defendant created the peril for the victim

Elements of Adverse Possession

COAH: For possession to ripen into title, it must be: i) Continuous - Uninterrupted as owner might use for the given statutory period. ii) Open and Notorious - Visible, rightful owner must see that someone is encroaching on property rights iii) Actual Use - Entry CANNOT be symbolic, hypothetical or fictitious; Literal physical entry that is EXCLUSIVE of true owner iv) Hostile Use - Possessor is there without TO's consent *NOTE: POSSESSOR'S SUBJECTIVE STATE OF MIND IS IRRELEVANT. Irrelevant that the trespasser believed that she was on her own land.

Partner's Ownership Interest in the Partnership

Called his partnership interest, it is the partner's personal property. There are restrictions as to what the partner can do with this property. Comprised of management rights and financial rights. Unless otherwise agreed, a partner cannot unilaterally transfer his management rights and thereby make the transferee a partner. Unless otherwise agreed, a partner can unilaterally transfer his financial rights. The transferee merely has the right to receive profit distributions that would otherwise have gone to the partner.

Sole Custody

Can be awarded in favor of one parent if there is strong evidence that sole custody is in the best interest of the child. If the court awards sole custody, in most cases the other parent will be entitled to reasonable visitation with the child.

Claims by third party defendants

Can be brought against the plaintiff and plaintiff can bring claims against them so long as they are part of the same transaction or occurrence as the original claim. Make sure to have SMJx for all claims

How to perform service on a business or organization

Can be done by delivering to an officer or agent or any state law methods.

How to Create a Periodic Tenancy

Can be done expressly or by implication. If by implication, look for no mention of duration but rent at set intervals, oral term of years violating statute of frauds, holdover tenant after lease ends.

Amendments after time to amend expires

Can be done with court permission if justice so requires. Allowed unless delayed too long, will prejudice other party, or would be futile.

When can shareholders remove directors?

Can be done with or without cause unless there is a staggered board: then it can be done only with cause.

Enforcement of Custody Awards

Can be enforced through contempt proceedings or through habeas. Kidnapping statutes can also enforce custody if the non-custodial parent takes the child.

When can conditions be excused?

Can be excused by action or inaction of person protected by condition.

Valid purpose in trust creation

Can create a trust for any reason as long as it isn't illegal or against public policy. Examples of prohibited purposes: commit a crime, avoid your creditors. If there is an invalid condition to a trust, court will either get rid of condition & let beneficiary take anyways or say the gift is void.

Necessity Defenses to Torts

Can only be used for property torts. Public necessity, private necessity,

When can a corporation make a distribution?

Can't make a distribution if the corporation is insolvent or any distribution would render it insolvent.

What does it mean for an interest in property to be alienable?

Capable of transfer inter vivos (during lifetime)

Statutory Rape

Carnal knowledge of a person under the age of consent. Strict liability crime.

Removal Venue

Case must be removed to the federal court that embraces the state court. Doesn't matter if not proper venue under the venue statute.

Cause-in-Fact (criminal law)

Cause is cause-in-fact if the result would not have occurred but for defendant's conduct

Rule Against Perpetuities

Certain future interests are void if there's any possibility they might vest more than 21 years after a person alive at the time of the grant has died.

Exceptions to the prohibition against citizenship standing

Challenging Tax Liability, Congressional spending that violates the Establishment Clause

Enforcement of Child Support Awards

Child support can be enforced through traditional civil and criminal contempt proceedings. As a result of federal legislation, parties may seize property, use wage withholding, intercept federal tax refunds and revoke licenses to enforce child support payments.

Tax Consequences of Child Support Orders

Child support payments are NOT taxable events

Pretermitted Child share

Children who are born or adopted after will execution are often given a share of the decedent's estate even though they aren't mentioned in the will. Won't happen if the entire estate is left to the child's other parent or if there is evidence the child was purposefully left out.

tortious Interference with Marriage

Claim against a third party who comes into the marriage and commits a tort that affects the marital relationship. (1) alienation of affection; (2) criminal conversation.

Crossclaim

Claim against co-party arising from the same transaction or occurrence as they underlying case. Never compulsory.

Loss of Consortium

Claim by spouse of injured party, derivative of injured party's claim

Joinder of multiple plaintiffs or defendants

Claims can be added if the claims arise from the same transaction or occurrence and raise a common question of law or fact and there is subject matter jurisdiction over all claims

Type 1 Class Action

Class treatment necessary to avoid harm either to class members or to the non-class party

How to rebut the presumption of paternity?

Clear and convincing evidence, although even if the husband can prove he isn't the father, many states prohibit the disestablishment of his paternity, based on the best interest of the child.

Mortgage Creation

Combination of a Debt (note) plus voluntary transfer of a lien in land to secure debt Must be in writing to be a legal mortgage

Rule of Convenience

Common law rule for determining when a class is closed for a vested remainder subject to open. A class closes whenever some member of that class can demand possession. "to A for life, then to B's children." the class closes at either A or B's death.

Establishment Clause

Compels the government to pursue a course of neutrality toward religion.

Competency of Witnesses

Competency is presumed unless presumed otherwise. There must be evidence sufficient to support that the witness has personal knowledge of the matter about which they are to testify and the witness must give an oath or affirmation to testify truthfully

Condonation Defense to Divorce

Complaining spouse had knowledge of the offense but still forgave the offending spouse

What counts as rejection of an offer?

Conditional acceptances, counteroffers

Speech or Debate Clause

Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution. Doesn't cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress

Grand Jury Proceedings

Conducted in secret, defendant has no right to notice or counsel. No right to have evidence excluded. Conviction from indictment issued by grand jury from which minority group excluded will be reversed.

Clergy-Penitent Privilege

Confidential communication to a minister in their capacity as a spiritual advisor, whether from a member of the church or not, is generally considered to be privileged and prevented from disclosure in court.

Congress's Property Power

Congress can dispose of and make rules for territories and other properties of the United States

Spending Power Conditions

Congress can impose conditions on the grant of money to state or local governments. such conditions are valid if they 1) are clearly stated, 2) relate to the purpose of the program, 3) are not unduly coercive, and 4) do not otherwise violate the Constitution

When can Congress Tax State or Local governments?

Congress can subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector.

Congress's Investigatory Power

Congress has a broad implied power to investigate to secure information for potential legislation or other official action. Investigation must be expressly or implied authorized by the appropriate congressional house.

Congress's Bankruptcy Power

Congress has a nonexclusive power to establish uniform rules for bankruptcy. States can legislate in the field as long as their laws don't conflict with federal law.

Congress's Postal Power

Congress has an exclusive postal power. It can classify and place reasonable restrictions on use of the mails but may not deprive any citizen or group of citizen of the general mail privilege

The Necessary and Proper Clause

Congress has the power to make all laws necessary and proper to carry out any of the legislative powers enumerated in Article I, as long as that law doesn't violate another provision of the Constitution.

Taxing and Spending Power

Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution

Congress's Power over Citizenship

Congress may establish uniform rules of naturalization

Congress's Admiralty Power

Congress's admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.

MPC Mental State: Purposefully

Conscious objective to engage in certain conduct or cause a certain result

MPC Mental State: Recklessly

Consciously disregard substantial and unjustifiable risk

Voluntary consent to Search

Consent is voluntary when provided willingly and without coercion, duress, threats, intimidation or deceit. An officer may tell a person if he does not consent, the officer will apply for a search warrant, but only if officers have legal justification or probable cause to do so. No consent if the police claim they have a warrant and they don't.

Material Breach under Common Law

Consider the impact on the non-breaching party and the actions and intentions of the breaching party. Occurs in the absence of substantial performance, no benefit of the bargain to the nonbreaching party. Here, contract has ended and any duty of counter-performance is discharged.

Statements by or Attributable to Opposing Party

Considered non-hearsay. Party's formal judicial statements are conclusive and cannot be contradicted during trial. Party's informal judicial statements and extrajudicial statements are not conclusive and can be explained.

Process

Consists of two documents: summons and copy of the complaint

full faith and credit

Constitution's requirement that each state accept the public acts, records, and judicial proceedings of every other state

Factors for Constitutional Analysis for Personal Jurisdiction

Contact, Relatedness, Fairness

Resale Damages

Contract price minus resale price

Self-Authenticating Documents

Contrary to the general rule, which requires testimonial sponsorship, there are certain writings that are said to "prove themselves" or to be "self-identifying" or "self-authenticating" on their face.

Priority in Investment Property

Control beats other perfection methods, earlier control beats later control. Debtor's intermediary beats other creditors.

Issuance of stock

Corporation can sell common stock directly to investors or indirectly through an investment banking firm

De Facto Corporation

Corporation that has not met the requirements of state incorporation statute, but courts recognize it as a corporation for most purposes to avoid unfairness to third parties who reasonably believed it was properly incorporated. Requirements: (1) relevant incorporation statute; (2) show parties made a good faith colorable attempt to comply with the incorporation statute; (3) proprietors are acting like they are a corporation.

Professional Corporation

Corporation where directors, officers, and shareholders must be licensed professional. Can still hire people who aren't licensed professionals, but those people cannot practice the profession. Shareholders are generally not liable for corporate operations or other professionals' malpractice

Treasury stock

Corporation's stock that they issued and then reacquired. If they decide to resell it, they can set any issuance price they want.

Bribery

Corrupt payment or receipt of anything of value for official action. Under modern law, it often gets extended to non-official action.

Transfer from proper venue

Court can order transfer based on convenience of the parties and witnesses in the interests of justice. Burden is on the person seeking transfer. Transferee court usually must apply choice of law rules of transferor court.

Termination of Parental Rights

Court determination that natural parents no longer have rights as natural parents, frees child up for adoption. Can be done voluntarily or involuntarily.

Court's Declining Jurisdiction over Child Custody

Court must decline to exercise jurisdiction if there is already a proper proceeding elsewhere, unless the court would defer to the new state and the court can exercise deferred jurisdiction, or, if the person who wants jurisdiction has engaged in unjustifiable conduct.

Prior Restraints of Speech

Court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards. They aren't favored and are rarely allowed.

Property acquired before marriage but paid for after marriage (how is it distributed in divorce?)

Court split on what they do. Majority view is that the property is apportioned between the separate and marital estates in proportion to the contribution of funds.

Remittitur

Court tells plaintiff they can either remit part of the damages award or get a new trial. Can be ordered if the damage figure shocks the conscience.

Tenancy at Sufferance

Created when tenant wrongfully holds over past lease expiration. We give wrongdoer a leasehold estate (tenant at sufferance) to give the landlord the appropriate legal basis upon which to proceed against the wrongdoer at rent. Terminates when landlord moves to evict or holds tenant to new tenancy.

Settlor of a Trust

Creates a trust by transferring legal title to a trustee & equitable title to a beneficiary.

Mortgagee

Creditor (lender)

Priority of Creditors in Foreclosures

Creditors must be recorded to take. First-in-time, first-in-right. Purchase-money mortgage: First priority in parcel financed

Strict Liability Offenses

Crimes that have no mens rea requirement; a person who commits the requisite actus reus may be convicted of the offense regardless of intent.

Modification of Custody

Custody can always be modified for the best interest of the child. Party seeking modification bears the burden of proof, requires substantial, material change in circumstance that affects the child's wellbeing.

Ineffective Assistance of Counsel

Deficient performance by counsel, but for the deficiency, result of the proceeding would have been different.

Residual Hearsay Exception

Hearsay statement that is not covered by a specific exception to be admitted. -Hearsay statement must possess sufficient guarantees of trustworthiness -The statement must be strictly necessary (more probative as to the fact for which it is offered than any other evidence that the proponent can reasonably produce) -Proponent must give reasonable notice to the adversary as to their intent to offer the statement

Tenant's Duty to Repair with Express Covenant

Duty to maintain the condition of the premises for the duration of the lease. At CL, means tenant is responsible for any loss to the property. Tenant may terminate lease if premises is destroyed without tenant's fault.

Landlord's Duty to Deliver Possession

Duty to place the tenant in actual, physical possession. If holderover tenant is still there, new tenant gets damages.

What duty does a property owner owe a licensee?

Duty to protect from hazards (1) concealed from licensee; and (2) known by possessor

Hearsay and the Confrontation Clause

Hearsay statement won't be admitted where: -The statement is being offered against the accused in a criminal case -The declarant is unavailable -The statement was testimonial in nature; and -The accused had no opportunity to cross-examine the declarant's testimonial statement prior to trial

Renewed Motion for Judgment as a Matter of Law

Exactly the same as a JMOL, but comes up later at trial. Renewed motion after jury verdict is announced. Jury reached a verdict that reasonable people could not have reached. CAN ONLY RENEW MOTION IF YOU DID MOTION FOR JMOL PREVIOUSLY Must be made within 28 days after entry of judgment

When can the defendant in a criminal case introduce evidence of a victim's character?

Except in sexual assault cases, the defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant's innocence.

Search Incident to an Arrest

Exception to the warrant requirement. A warrantless search of an arrested individual AFTER the individual is arrested. Police can make a protective sweep of the area. The search must be contemporaneous in time and place with the arrest. Allows police to search the person and the areas within the person's wingspan.

Parol Evidence Rule

Excludes evidence of prior or contemporaneous agreements contradicting final writing

Rule 403.

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following considerations: Unfair prejudice, confusion of the issues, mislead the jury, undue delay, waste of time, cumulative evidence

Executive Agreements

Executive agreements are signed by the president and the head of a foreign country. They can be used for any purpose that treaties can be used for, don't require the consent of the Senate. If a state law conflicts with an executive agreement, the agreement prevails. If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.

Tangible personal property document

Exists in half the states. Permits the testator's will to refer to a written statement to dispose just of tangible personal property not otherwise disposed of in the will EVEN THOUGH this list wasn't in existence at the time of will execution.

Void marriage

Exists when parties fail to meet an essential requirement of marriage. Parties don't even need to bring a legal action to declare it void. But if legal action is brought, court can decide ancillary matters like property division and spousal support. Can also be attacked collaterally by a third party. Ex: bigamy, too closely related.

Apparent Authority

Exists when the principal holds out another as possessing authority and a third party is reasonably led to believe that authority exists. If the principal's words or conduct would lead a reasonable person in the third party's position to believe the agent has authority to act on the principal's behalf, then the agent has apparent authority. May be established by an agent's title or position.

What is the remedy for breach of contract?

Expectation damages

Incidental Damages

Expenses that are caused directly by a breach of contract, such as those incurred to obtain performance from another source. Always recoverable.

Second Restatement Considerations in Torts Cases (choice of law)

Factual connections: place of injury, place of conduct causing injury, place where the parties are at home, place where the relationship is centered Policy principles: relevant policies of the forum state, relevant policies of other connected states

MPC Mental State: Negligently

Fail to be aware of substantial and unjustifiable risk

Brady

Failure to disclose material, exculpatory evidence is grounds for reversing conviction if: Evidence is favorable to defendant and prejudice has resulted

When is there a breach of a contract?

Failure to perform an absolute duty of the contract.

Time for Performance of Contract

Failure to perform within the stated time doesn't mean there has been a material breach if performance is within a reasonable time, unless time is of the essence

Willful Desertion for a specified time divorce

Fault divorce because one party had an unjustified departure from the marital home with no intent to return. Escaping abuse is a justified departure. To prove intent not to return, one spouse needs to ask the other to return and they decline.

When can a necessary absentee be joined in a case?

Feasible if there is personal jurisdiction over the absentee and federal SMJx over the claim by or against absentee.

In diversity cases, what choice of law rules will the court apply?

Federal court will apply the choice of law approach of the state in which it sits. In a case that is transferred in the federal system, the court will apply the choice of law approach of the original transferor court.

Defeasible fees

Fee simples with a condition attached. If the condition manifests, the holder of the estate runs the risk of forfeiture

Proximate Cause Theory (felony murder)

Felon is liable for deaths of innocent victims caused by someone other than co-felon (ex: police accidentally shoot a bystander). Minority view

When is a hiring party vicariously liable for the actions of independent contractors?

Hiring party is generally not liable for torts committed by the independent contractor. But a business owner can be held vicariously liable if an independent contractor is working on the business premises and hurts the customer. Can also be liable if the contractor is engaging in inherently dangerous activities.

Easement in Gross

Holder has a personal/commercial advantage unrelated to use/enjoyment of land. Servient land is burdened with no dominant land.

Property Division Orders

How court decides property should be split after divorce. Not modifiable.

Void for Vagueness Doctrine

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause.

Cy Pres Doctrine

If a disposition would violate the RAP, Court can redraft the disposition to make it "as near as possible" to grantor's intent.

Unprotected Speech of Government Employees

If a government employee's speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment. A government employer may also punish a public employee's speech whenever the speech is made on the job and pursuant to the employee's official duties, even if the speech touches on a matter of public concern.

When can a party's silence be considered a non-hearsay adoptive statement?

If a party remains silent in the face of an accusatory statement, their silence may be considered an implied acquiescence to the truth of the statement if the following requirements are met: (1) the party heard and understood the statement; (2) The party was physically and mentally capable of denying the statement; and (3) a reasonable person would have denied the accusation.

When is an agent considered an employee?

If a person is subject to the control of another as to the means used to achieve a particular result, then you are an employee

Exoneration of Liens

If a testator devises a real property that is subject to an encumbrance (a mortgage or a lien), then the devisee is entitled to have the land "exonerated" by: requiring payment of the encumbrance from the remaining assets in the testator's estate Most states have *ABOLISHED* this doctrine => the property is subject to the encumbrance (no exoneration), unless the WILL specifically requires payment of the encumbrance.

Recorded Recollection Exception

If a testifying witness's memory cannot be revived, a party may introduce a memorandum or other record that the witness made or adopted at or near the time of the event. Record can only be read into evidence, it cannot be admitted as an exhibit unless offered by an adverse party.

Use of interpreters in court

If a witness requires an interpreter, the interpreter must be qualified and taken an oath to make a true translation

When is the principal bound by contracts that the agent entered into?

If actual authority, apparent authority, or ratification are present, the principal is liable on the contract and the agent isn't. If the principal is undisclosed or partially undisclosed, both the principal and the agent are on the hook

How do we determine the share to descendants?

If all the children survive (or a predeceasing child doesn't have descendants themselves), then each child receives an equal share. Grandchild cannot take if their parent is still alive.

Equal Dignities Rule

If an agent is empowered to enter into a contract that must be in writing, then the appointment of the agent must also be written

Frustration of Purpose

If both parties understood the central purpose of the contract, performance is excused if the contract's essential purpose is undermined.

Substantial Performance under Common Law

If breaching party has substantially performed their obligations, nonbreaching party cannot avoid performance. Substantial performance has occurred if the non-breaching party gained a substantial benefit of the bargain despite defective performance. Also consider hardship to the breaching party.

When does a State have jurisdiction over a crime?

If either constituting an offense was committed in the state, or if an act committed outside of the state caused a result in that state

Implied Preemption

If federal and state laws are mutually exclusive If state law impedes the achievement of a federal objective If Congress evidences a clear intent to preempt states law Fed law "wholly occupies field"

Levels of Scrutiny for Traditional Public Forums and Designated Public Forums

If it is content-based, it will be subject to strict scrutiny. If it is content-neutral, it only needs to meet intermediate scrutiny, which in this context means it must: be narrowly tailored to serve an important government interest and leave open alternative channels of communication.

How do you know what state's intestacy laws to apply?

If it is personal property: domicile at death If it is real property: it is the location of the land

When can a defendant attack an identification? (crim pro)

If it is unnecessarily suggestive and there is substantial likelihood of misidentification. The remedy for an unconstitutional identification is to exclude it. But the witness may make an in-court identification if it has an independent source.

Duty to Supplement Discovery

If new facts come to light after we respond to discovery, and the new facts make some discovery incomplete or incorrect, the party must supplement her response to discovery.

When can a ruling on summary judgment be delayed?

If non-moving party needs more time to respond because they need to find more evidence. Non-moving party must state what this evidence would be that they need more time to get.

Automobile Exception to the Warrant Requirement

If police have probable cause to believe a car contains fruits, instrumentalities, or evidence of a crime, they may search the entire vehicle and any container that might reasonably contain the item. The probable cause necessary to justify the search of a car can arise after the car is stopped.

When can work product be discovered?

If requesting party can show substantial need and undue hardship. But opinion work product can still never be discovered.

Tenant's Duty to Pay Rent

If tenant breaches payment of rent and remains on premises, landlord can evict or continue the relationship and sue for rent. No self-help. Entitled to rent until the tenant vacates. If tenant breaches and is out of possession, landlord can surrender (end lease), ignore (hold tenant liable for rent), or relet (hold tenant liable for deficiency)

Permissive Intervention

If the absentee's claim or defense and the pending case have at least one common question of law or fact, intervention is allowed at the discretion of the court. Will usually be allowed unless it will delay or prejudice proceedings.

When is an agent considered an independent contractor?

If the agent is subject to the control of another as to the results only but not over how to achieve those results

When are nondiscriminatory state laws that burden interstate commerce invalid?

If the burden on interstate commerce outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available.

First Restatement Vesting Rule for Contracts (choice of law)

If the case has to do with formation: apply law of place where the contract was executed. If the case has to do with performance, apply law of place where contract was to be performed.

When can a federal court decline supplemental jurisdiction?

If the claim on which SMJx is based is dismissed early in the case.

What is extreme and outrageous conduct for IIED?

If the conduct exceeds all bounds of decency tolerated in a civilized society. Mere insults are not considered outrageous.

What is offensive contact for the tort of battery?

If the contact would be unpermitted by a person of normal sensitivity

Defamatory Speech about Public officials or figures

If the defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus falsity and actual malice

Rights of Unwed Fathers

If the father shows parental responsibility (supervising, education, providing care or support), he will have rights protected of all fathers under the Due Process Clause.

What is considered public use for a taking?

If the government's action is rationally related to a legitimate public purpose.

Who has a claim if someone makes a defamatory statement against an unidentified member of a group?

If the group is small, then everyone has a defamation claim. If the group is large, no one has a defamation claim.

When are State or local laws that discriminate against interstate commerce valid?

If the law is necessary to achieve an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.

Choice of Law in Marriage

If the marriage is valid where it is PERFORMED, it will be recognized as valid everywhere. Exception: temporary move to avoid the rule of domicile, state of domicile need not recognize that marriage.

Transfers by Mortgagor

If the mortgage is recorded, it sticks with the land. Seller remains personally liable.

Transfer due to Improper Venue

If the plaintiff files suit in an improper venue & defendant objects, court can either transfer to a proper venue or dismiss the case. The defendant would waive any objection to venue by filing an answer and new matter instead of filing preliminary objections. Transferee court would apply their own choice of law rules.

Private Figure Suing on a Matter of Private Concern (defamation)

If the plaintiff is a private figure suing on a matter of private concern, then the First Amendment is not involved. These plaintiffs can recover for any damages that state law allows.

How much fault is required on the defendant's part to be liable for defamation

If the plaintiff is a private person: sufficient to show that the defendant made the statement negligently If the plaintiff is a public figure: must show the statement was made with knowledge it was false or with reckless disregard to its truth

When can secondary evidence be used?

If the proponent cannot produce the original writing in court, they may offer secondary evidence of its contents if a satisfactory explanation is given for the non-production of the original

Protective Order

If the responding party thinks a discovery requests subjects it to annoyance, embarrassment, undue burden, or expense they can move for a protective order. Party must certify that she tried in good faith to get the info without court involvement (she asked the other side to "meet and confer"). Court can deny and order discovery, limit discovery, or permit discovery within terms.

When is an interstate seller required to collect a use tax?

If the seller has a substantial nexus with the taxing state. A physical presence isn't required to establish a substantial nexus.

What if the beneficiary to a trust was married to and divorces the settlor?

If the settlor is divorced from their spouse who is a beneficiary, the provisions in favor of the spouse are void.

Limitations on Spendthrift Provisions

If the settlor is the beneficiary, public policy generally doesn't permit you to protect your own money from your own creditors.

Protected Speech of Government Employees

If the speech is on a matter of public concern but is not made pursuant to the employee's official duties, the courts will use a balancing test. The courts must balance the value of the speech against the government's interest in the efficient operation of the workplace. For speech on matters of private concern outside of the workplace, the test is unclear, but this speech appears protected absent a detrimental effect on the workplace.

When can Congress subpoena the President's personal information?

If the subpoena advances a legitimate legislative purpose. The Court will balance Congress's interest in obtaining the information against the burdens on the President.

Replacement property exception to ademption by extinction

If the testator replaced the gifted item with a similar item, the beneficiary would get the new item.

When can a defendant waive the right to counsel at trial?

If the waiver is knowing and intelligent and the defendant is competent to proceed pro se

Generally Accepted Accounting Principles (GAAP)

If there is a business in a trust, we generally use these standards to determine the income of the business

When is a contract modification sought in good faith?

If there is a legitimate commercial reason for the modification.

What is considered confinement for the tort of false imprisonment?

If there is a reasonable means of escape that the plaintiff can reasonably discover, no imprisonment. An escape isn't reasonable if it is too gross, hidden, or embarrassing.

When can a trustee delegate investment decisions?

If they are the trustee of a sizeable trust, use reasonable care in selecting the agent they are delegating decisions to, and monitor the agent's performance.

When are Federal Taxes Valid?

If they bear some reasonable relationship to revenue production or to promoting the general welfare.

Can co-trustees be held liable for the breach of a different trustee?

If they don't agree & join in the transaction, they will initially be protected. But the co-trustee still has a duty to sue the other co-trustees for breach of trust.

What happens if a trust doesn't have a trustee?

If trustee dies or otherwise becomes unable to serve, court has the authority to appoint a trustee. (can't force someone to be a trustee)

Perfection for Proceeds

If you have a perfected secured interest in collateral, then you AUTOMATICALLY have a perfected security interest in the proceeds for 20 DAYS. To remain perfected, the secured party must take new action to perfect UNLESS the proceeds are identifiable cash proceeds OR Same Office Rule.

Half-blooded collateral heirs

If your siblings are inheriting from you, does it matter if you are half-siblings? Modern view is that it doesn't matter, but some states have special rules

Retaliatory Eviction

Illegal eviction of a tenant that has exercised protected rights under the law. Landlord also can't penalize tenant in any way for exercise of rights. Retaliatory motive is presumed if landlord is acting within a 90-180 day window after tenant blows whistle. Can be overcome by landlord showing a valid reason for action.

Use Taxes

Imposed on goods purchased outside the state but used within it. Presumptively valid.

Dead Man Acts

In a civil case, an interested person is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person is interested if they stand to gain or lose by the judgment, or if the judgment may be used for or against them in a subsequent action

Conclusiveness of judicial notice

In a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may (but is not required to) accept the judicially noticed fact as conclusive.

Dying Declarations Exception

In a homicide prosecution or in any civil case, a statement made by a now-unavailable declarant is admissible if: -the declarant believed their death was imminent and -the statement concerned the cause or circumstances of what the declarant believed to be their impending death

When does Jeopardy attach?

In a jury trial: When the jury is sworn. In a bench trial: When 1st witness is sworn in.

Mortgage and Joint Tenancy

In a minority of states, when a joint tenant puts a mortgage on their interest, the entire joint tenancy is severed. (title theory) In a majority of states, there is no severance (lien theory)

Presumption against Preemption

In all preemption cases, but especially in cases involving a field traditionally within the power of the states, courts will start with the presumption that the historic state police powers are not to be superseded unless that was the clear and manifest purpose of Congress.

Common Foreseeable Intervening Forces

In all this scenarios, the intervening force is foreseeable & defendant is liable. -Medical malpractice -Negligence of rescuers -Protection or reaction forces (people freak out because of injury & injure P more) -Subsequent disease or accident

What must be stated in a temporary restraining order?

It must state its terms specifically, and describe in detail what it is the defendant must do or refrain from doing; must state why it was issued; and why the plaintiff's potential harm was irreperable

Secured Party versus Judgment Lienholder

Judgment lienholder wins if lien arose before security interest was perfected

Recognition of Foreign Judgments

Judgments of foreign nations are not given FF&C but may be voluntarily recognized due to comity. Courts ask if the foreign court had jurisdiction and if the foreign court procedures were fair.

Federal Question Jurisdiction

Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties. Determined by the well-pleaded complaint.

Specific Jurisdiction

Jurisdiction that stems from the defendant's having certain minimum contacts with the forum state so that the court may hear a case whose issues arise from those minimum contacts.

Challenges for Cause

Juror should be excluded for cause if juror's views would prevent or substantially impair performance of duties.

When can a juror testify?

Jurors are incompetent to testify before the jury in which they are sitting. During an inquiry into the validity of a verdict, a juror is generally prohibited from testifying about what occurred during deliberations or about anything that may have affected a juror's vote.

How to request a jury trial in a civil case

Jury must be demanded within 14 days of last pleading showing there is a triable issue that can go in front of a jury.

Involuntary Manslaughter

Killing committed with criminal negligence (or recklessness under MPC)

Voluntary Manslaughter

Killing that would otherwise be a murder except for the existence of adequate provocation.

Breach by Constructive Eviction

L renders premises unsuitable for occupancy. Three elements must be met: Substantial interference (chronic/permanent problem due to landlord's actions or failures) Notice (tenant must notify landlord & he doesn't fix it) Vacate (tenant must vacate the premises)

Cumulative Zoning

Land is ranked and graded according to categories of highest, most valuable use and least valuable use to create a hierarchy of uses. Land that is zoned for a particular use can be used for that use and any higher use.

Exceptions to Caveat Lessee

Landlord must keep common areas in good repair Landlord must warn about hidden defects that tenant couldn't discover by reasonable inspection. If landlord starts repairs, he must complete with with reasonable care Landlord who leases public space for short periods should know tenant won't repair & so they will be liable for defects that injure the public Short-term lease of furnished dwelling

How can an offer be terminated?

Lapse of time, rejection, revocation

Notice Jurisdiction for recording statutes

Last bona fide purchaser to take wins, regardless of who records first.

Internal affairs rule

Law of state of incorporation governs internal affairs of corporation

Ex post facto laws

Law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity. A statute retroactively alters a law in a substantially prejudicial manner if it: Makes criminal an act that was innocent when done, imposes a greater punishment for an act than was imposed for the act when it was done, or reduces the evidence required to convict a person of a crime from what was required when the act was committed.

How to Terminate a periodic tenancy?

Notice! How much notice? Look at what lease says Common law: At least equal to length of period (ex: one month if month-to-month) Year-to-year+: one month under restatement

What type of process does procedural due process require?

Notice, an opportunity to be heard, and a neutral decisionmaker

Issued Stock

Number of shares of stock a corporation has actually sold

Serving Process Internationally

Look to see if there is a treaty on point Then see what the court tells you to do, see what method is allowed by the foreign country's law, method directed by a foreign official in response to a letter of request, mail if done by clerk of court and allowed by foreign country law

Intent approach to revival of wills

Look to see if there is evidence of whether the testator intended to revive the old will.

Final Judgment Rule

Losing party has a right to appeal if the court's order is a final judgment. Ask after making this decision, whether the trial court has anything left to do on the merits of the case.

Statute of Frauds Requirements

MUST be in writing to be enforceable: Marriage, Require more than a year to complete, transfers of interests in land (except leases less than a year), promise by executors to pay the estate's debts from some other source of funds, goods for more than 500 dollars, sureties (promise to guarantee the debts of another)

Arson

Malicious burning of the dwelling of another. Don't have to burn down the whole thing, charring is sufficient. Scorching (blackening by smoke or discoloration by heat) isn't enough

How are limited partnerships managed?

Managed by the general partners. Each general partner has equal rights in the management and conduct of the limited partnership's activities. The vote of the majority of the general partners is necessary for ordinary business activities. Limited partners generally have no management rights unless granted by the partnership agreement. The vote of all partners, general and limited, is necessary for some extraordinary activities. Profit is distributed based on contributions (20% of capital means 20% of profits).

Surrogate Statutes

Many states have these statutes that give the rights to certain people to make decisions for their relative if they are incapacitated and don't have a healthcare power of attorney

Market Damages

Market price minus original contract price. Generally used instead of cover damages if the buyer goes out and buys much better replacement goods.

Market Reports Exception (evidence)

Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation

Privacy-Related Rights

Marriage, Procreation, Use of Contraceptives, Rights of Parents, Keeping Extended Family together, abortion, obscene reading material

Work Product Privilege

Material prepared in anticipation of litigation. Does not have to be generated by an attorney.

Intoxication Defense

May be caused by any substance. Difference between voluntary and involuntary intoxication.

Alienable inter vivos

Means that a right to property is transferable during its holder's lifetime.

What is just compensation for a taking?

Measured by the fair market value of the property taken at the time of the taking, and it's based on the loss to the owner. Increases in value to the owner's remaining property as a result of the taking are not considered

Merchant's Firm Offer Rule

Merchant promises in signed writing to keep offer open for time stated or reasonable time. Enforceable for up to three months.

Entrustment (contracts)

Merchant who ordinarily deals in goods of kind sells entrusted goods to their friend. Owner who entrusts goods to a merchant who regularly deals in goods of that kind has no rights against a bona fide purchaser

License

Mere privilege to enter another's land for narrow/delineated purpose

What happens if the legal and equitable title of a trust is consolidated into one person?

Merger occurs and there is no more trust

Trust

Method of property conveyance. Title to property is divided into its legal part and equitable part. Legal title goes to the trustee and equitable title goes to the beneficiary.

Surcharge

Misuse that overtly and wrongfully burdens the servient estate. If profit holder is unduly, unreasonably burdening the servient estate, can terminate by surcharge.

How many parties are necessary for conspiracy?

Modern/Unilateral Approach: Only one party must have criminal intent. Traditional/Bilateral Approach: At least two parties must have criminal intent.

Nonpurchase-Money Mortgage

Mortgagor already owns the home when he borrows money and puts the mortgage on his home.

Limited Liability Company

Most common form of business entity today. Hybrid between partnership and corporation where the members have limited liability and the benefits of partnership tax treatment. It is a separate entity apart from its members. Operating agreement is the document that lays out the rules of the LLC.

Rent Deposits

Most states restrict the amount of a security deposit to one month's rent. Will normally be required to put the money in an interest-bearing account.

Savings statute (dead law)

Most states will consider a will valid if it complies with their law, or the law of the state where the will was made, or the law of the decedent's domicile at death.

Motion to Set Aside

Motion after trial to set aside the judgment. 1. Clerical error can be done anytime 2. Mistake can be done in reasonable time less than 1 year 3. New evidence that could not have been discovered with due diligence for a new trial motion can be done in reasonable time less than 1 year 4. Void judgment (no SMJx) can be done at any reasonable time

Judgment as a Matter of Law

Motion at jury trials, presented by one side to ask the judge to decide the case after trial rather than jury. Based on evidence presented at trial. Judge should grant if reasonable people could not disagree on result. Court views evidence in light most favorable to non-moving party. Motion can be made after the opposing party has been heard on the issue.

Tenant's options if landlord breaches implied warranty of habitability

Move, repair the house itself & deduct repairs from rent, reduce or withhold rent until the court can determine fair rent in view of defects, remain & pay rent & seek damages

Motion to dismiss for improper service of process

Moving to dismiss because service was improper

Motion to dismiss for improper process

Moving to dismiss because there is something wrong with the papers served

Development Exception to the Taking Clause

Municipalities often attempt to condition building or development permits on a landowner's (1) conveying title to part of the property to the government or (2) granting the public an easement to access the property. this is a taking unless (1) the government can show there is an essential nexus between the condition and the proposed development and (2) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.

Malice Crimes

Murder and arson. Requires a reckless disregard of obvious or high risk that the particular harmful result will occur.

Imperfect Self Defense Doctrine

Murder may be reduced to manslaughter if unreasonably but honestly believed the necessity of responding to force with deadly force. Also can be applied if defendant was at fault in starting the altercation.

Internal Integration (dead law)

Must be able to show that all of the pages of the will that were present at time of will execution are the same as the pages that you're presenting to the court.

Pretrial Disclosures

Must be given at least 30 days before trial. Includes list of witnesses expected to be called, testimony presented through deposition, documents or physical evidence expected to present.

Shareholder Meeting Notice

Must be in writing and delivered 10-60 days before the meeting to every shareholder entitled to vote. Must state the date, time, and the place of the meeting. For special meetings, you must state the purpose of the meeting

Voting (Pooling) Agreement

Must be in writing and signed. May or may not be enforceable depending on the state.

What is a conspicuous disclaimer of implied warranties?

Must be reasonably obvious to a reasonable person.

Authentication of X-Ray Pictures

Must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with

Invocation of right to remain silent

Must be unambiguous and police must scrupulously honor request by not badgering detainee. Police can probably requestion about a different crime after a break and new warnings are issued.

Invocation of right to counsel

Must be unambiguous. All questioning must cease until counsel has been provided unless detainee waives the right to counsel or is released back to normal life and 14 days have passed since release.

Overt Act for Attempt

Must commit an act beyond mere preparation. Modern test is whether a substantial step in course of conduct was committed.

How does a foreign corporation qualify to do business in a state?

Must get a certificate of authority from the secretary of state.

What must be included in the name of a corporation?

Must include the word or the abbreviation of corporation, company, incorporated, or limited.

Qualification as Expert

Must possess special knowledge, skill, experience, training or education

Pleading Contents

Must state grounds of SMJx A short and plain statement showing the plaintiff is entitled to relief A demand for relief

Do we consider the hypersensitivity of plaintiffs for intentional torts?

NO

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. Written report by expert must be disclosed (draft reports and communication are protected work product)

Vertical Privity

Necessary for covenant to run with the land. Refers to the nexus between A and A-1 (buyer and seller). It simply requires some non-hostile nexus, such as contract, devise, or descent. This is much easier to establish, and will be absent only if A-1 acquired through adverse possession.

What actions prove the existence of a contract under the part performance doctrine?

Need 2/3 Buyer took possession Buyer paid purchase price or significant portion Buyer made substantial improvements

Pre-existing Legal Duty Rule

Need new consideration to modify a common law contract.

Mental State Required for Accomplice Liability

Need the dual intent (1) to assist the principal in committing the crime and (2) that the principal actually commit the substantive offense. If the main crime has a reckless or negligent mens rea, can be committed of accomplice liability if the accomplice intended to facilitate the crime or acted with recklessness or negligence.

Valid Assignment

Needs language of present transfer (I assign), no consideration needed.

Permissive Waste under Tenancy in Common

Neglect. Co-tenant can bring action against co-tenant whose neglect harms the property

Types of Products Liability Claims

Negligence, UCC (implied warranty of merchantability), misrepresentation/fraud, strict liability

What is necessary to modify a contract for the sale of goods?

No consideration is needed, all you need to show is good faith

Fair Housing Act

No housing discrimination on basis of race, color, religion, sex, disability, familial status, national origin. Must allow tenants with disabilities to make reasonable accommodations to help better meet their needs.

Collection and Distribution of Personal Data

No privacy right. The state may reasonably gather and distribute information about its citizens

Habeas Corpus Proceeding

No right to appointed counsel. Petitioner has the burden of proof to show unlawful detention by a preponderance of evidence.

How to Create a license

No writing required, freely revocable at will of licensor.

Must a state recognize a judgment from a foreign country?

No, to see if a judgment should be recognized from a foreign country, ask if it is entitled to comity

When does a breach excuse the nonbreaching party's performance?

Nonbreaching party must show they are willing/able to perform but for the breach.

Nondiscriminatory State Taxes that Affect Interstate Commerce

Nondiscriminatory tax will be valid if: (1) the tax applies to an activity having a substantial nexus to the taxing state; (2) the ta is fairly apportioned according to a rational formula; (3) the tax is fairly related to the services or benefits provided by the state.

Nonparental Visitation

Nonparental visitation can be applied for (generally by grandparents). Usually applies when there is some sort of extraordinary circumstance (typically when parents are going through a divorce)

Subpoenas or Notice of Deposition

Nonparties must be served with a subpoena. Notice of deposition is sufficient for parties. Non-party can only be forced to travel 100 miles from where she resides or is employed.

Trust Termination

Normally done by the terms of the trust. Ex: when someone dies, when they graduate from college, when they reach a certain age.

What if the beneficiary to a trust dies before the trust ends?

Normally, if the trust is silent, the gift will fail. Some states have anti-lapse statutes.

Abandonment of Attempt

Not a defense at common law. Under MPC, valid if fully voluntary and complete abandonment.

Withdrawal from Conspiracy

Not a defense to conspiracy, but may be a defense to crimes committed in furtherance of the conspiracy. The conspirator must perform an affirmative act that notifies ALL co-conspirators of withdrawal in time for them to abandon planes.

Can claims made in the pleadings support a motion for summary judgment?

Not considered evidence unless verified (made under oath). Claims in complaint that defendant didn't deny can be treated as facts on summary judgment.

Overt Act requirements (Conspiracy)

Not required at common law. Now, an act in furtherance of the conspiracy must be performed before conspiracy can be charged. Need agreement + overt act. Even an act of mere preparation is enough.

Transferability of Easement in Gross

Not transferable UNLESS it is for commercial purposes.

What type of intent is required on behalf of the government for a successful equal protection claim?

For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate. Intent may be shown by: A law that is discriminatory on its face A discriminatory application of a facially neutral law; or A facially neutral law with a disparate impact on a protected class of people

Redemption of Stock

Forced sale of stock to the corporation at the price set in the articles. Done at the board's discretion.

Consequential Damages

Foreseeable damages that result from a party's breach of contract but are caused by special circumstances beyond the contract itself. Only recoverable if foreseeable at the time of formation.

In general, to whom do you owe a duty?

Foreseeable victims within the zone of danger and rescuers (danger invites rescue)

Tenancy by the Entirety

Form of Concurrent ownership. Specially-protected marital interest. Accompanied by the right of survivorship. Arises presumptively in any grant to married partners unless the language clearly indicates otherwise. No unilateral transfer or encumbrance.

What must a corporation receive when it issues stock?

Form: any tangible or intangible property or benefit to the corporation Amount: Par (the minimum issuance price)

Exceptions to the Consent Defense in Tort

Fraud or duress.

Matters requiring more detail or specificity in pleading

Fraud, mistake, special damages

Embezzlement

Fraudulent conversion of personal property of another by person in lawful possession of that property.

Exceptions to the Fruit of the Poisonous Tree Doctrine

Fruits derived from statements in violation of Miranda Evidence obtained from an independent source Attenuation: Causal link between police misconduct and evidence is broken Defendant's intervening act of free will Inevitable discovery Violations of knock and announce rule

Indemnification

Full reimbursement to out-of-pocket defendant. A defendant is entitled to indemnification when (1) someone is held liable through vicarious liability, (2) strict liability if the party who wound up playing the plaintiff wasn't the manufacturer

Remainder

Future interest created in a third party. It becomes possessory on the natural expiration of the preceding estate (preceding estate is never ending due to forfeiture). "To A for life, then to B."

Who is liable for the obligations of a limited partnership?

General partners but not limited partners.

Can beneficiaries under a will transfer their interest?

General rule is that the interests are freely transferable. But we have spendthrift provisions that prevent the beneficiary from transferring the property and creditors from attaching and beneficiaries' interests are almost always limited to their lives.

Mistake of Law Defense

Generally NOT a defense.

Who are authorized officiants to perform marriage ceremonies?

Generally judges, justices of the peace, heads of certain state agencies, and all religious personnel

Scope of Cross-Examination

Generally limited to the scope of direct examination and matters that test the credibility of the witness

Peremptory challenges

Generally may use peremptory challenge for any reason. Cannot challenge jurors solely on basis of race or gender.

Affirmative Duties to Act (torts)

Generally no duty to act affirmatively. But if you choose to act, must do so as reasonably prudent person under circumstances.

What magic words are used to disclaim implied warranties?

"As is" or "with all faults." Can use any other conspicuous disclaimer too.

Privilege, License, Franchise, or Occupational Taxes

"Doing business" taxes. To be valid: (1) the activity taxed must have a substantial nexus to the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must fairly relate to services provided by the state.

Satisfaction Condition

"I will pay you X if I am satisfied." Satisfaction is measured by the reasonable person standard unless the contract deals with art of personal taste

Caveat Lessee

"Let the tenant beware." If tenant is injured on site as a proximate cause of a defect on site, landlord is under no duty to make premises safe.

Fee Simple Subject to Executory Interest

"To A, but if X event occurs, then to B." Third party, not grantor, takes if condition betrayed.

Vested rights choice of law approach

"Under this approach, the court will apply the law of that state mandated by the applicable vesting rule." If the claim took place in a state, that state's law must govern. For different claims, there are specific events that we care about.

M'Naghten test

"right-wrong test"; the defendant is entitled to acquittal if a disease of the mind caused a defect of reason such that the defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.

Timing of removal

(1) A party has 30 days after receipt of summons to remove (2) If a case becomes removable later, a party has 30 days to remove

What must a plaintiff show for res ipsa loquitur?

(1) Accident is normally associated with negligence; (2) accident would normally be due to negligence of someone in Defendant's position (injury-causing object under defendant's exclusive control)

Three Requirements for full faith and credit

(1) Court that rendered the judgment must have had jurisdiction over the parties and subject matter (NOTE: if issue of jxn was litigated in one state, that court's ruling on jxn is final and must be recognized by other states) (2) Judgment must have been on the merits; i.e., on the substance of the plaintiff's claim rather than on a procedural issue, such as improper venue or running of the SOL; and (3) Judgment must be final **Judged based on the law of the rendering state

Tort of False Imprisonment

(1) Defendant commits act of restraint; (2) plaintiff is confined in a bounded area; (3) plaintiff is aware of the confinement or is harmed by the confinement

Trespass to Land (tort)

(1) Defendant commits an act of physical invasion (throwing something on the land also counts); (2) of land (including air above and soil beneath property)

Elements of Defamation

(1) Defendant made a defamatory statement identifying Plaintiff; (2) statement is published to a third party; (3) Falsity; (4) Fault (making statement with good faith belief it is true means you aren't liable); (5) damages

Tort of Assault

(1) Defendant must place plaintiff in reasonable awareness; (2) of an immediate battery

Intentional Infliction of Emotional Distress

(1) Defendant participated in extreme and outrageous conduct and (2) plaintiff suffered severe emotional distress.

Standing

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

General Conditions of Admissibility of Real Evidence

(1) Must be identified as what the proponent claims it to be either by testimony of a witness that they recognize the object as what the proponent claims it is or evidence that the object has been held in a substantially unbroken chain of possession (2) If the condition of the object is significant, it must be shown to be in substantially the same condition at trial

Consequences of Adoption

(1) Severs all rights and obligations of bio parents to the child (2) Creates duties to adoptive parents and child. (3) In some states, the adoptive child still has the right to inherit from bio parents.

When are you allowed to borrow a criminal statute for negligence per se?

(1) Show plaintiff is within the protected class of persons that statute is trying to protect; (2) harm suffered is within risks that the statute is trying to prevent

Exceptions to the Best Evidence Rule

(1) Summaries of voluminous records; (2) certified public records; (3) writing is collateral to litigated issue; and (4) testimony or written admission of opponent

Requirements for expert testimony to be admissible

(1) The subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact; (2) the opinion must be based on sufficient facts or data; (3) the opinion must be the product of reliable principles and methods; and (4) the expert must have reliably applied the principles and methods to the facts of the case

Merits Sanctions

**imposed only after opportunity to be heard** --Establishment order: establishes facts as true. --Strike pleadings of disobedient party as to the issues re discovery. --Disallow evidence --Dismissal or default (only possible if there is bad faith)

Requirements to Form a Corporation

- Incorporators- must have one or more to execute the articles of incorporation and deliver them to the Secretary of State - Articles of Incorporation- must include corporate name, name and address of each incorporator, name of registered agent and office in state of incorporation, capital structure (stock and stuff) - Act- incorporators execute the articles and deliver them to Secretary of State with required fees

When are interlocutory appeals allowed?

- Injunctions as of right (TRO isn't an injunction) - Interlocutory appeals act - Collateral Order Doctrine - Multiple Claims or Parties: if one party or claim is wrapped up but there are other parties/claims left, court may direct entry of final judgment and find no reason to delay appeal -Certification of Class Action -Writ of mandamus or prohibition

Spousal Abuse Orders

- Laws in every state protect victims of domestic abuse both in and outside marriage - The victim is entitled to a PROTECTIVE ORDER against the other spouse which can be granted ex parte and can last for one month to several years depending on the jurisdiction

What are the absolute privileges defenses to defamation

1. Statements to your spouse 2. Officers of government in connection with their official work

Factors to consider in making an equitable division of marital property

-Age, education, background & earning capabilities -Duration of marriage -Standard of living during marriage -Present income and employability -Source of funds -Health of parties -Assets, debts, and liabilities -Needs -Custody of minor children -Alimony -Opportunity to acquire future income and assets -Contribution to marital assets -Contribution as homemaker -Economic fault

Circumstantial evidence of undue influence

-An unnatural disposition -Opportunity -Relationship between the parties -Ability of the testator to resist -Was beneficiary involved in drafting the will?

What types of crimes can be used to impeach?

-Any crime involving dishonesty or false statement -Felonies not involving dishonesty or false statement (could has discretion to exclude)

Three ways perfection by control is possible (non-consumer deposit accounts)

-Automatic control by bank maintaining the account -Putting the account in the secured party's name -Control agreement (debtor tells bank that if they get notice of default, they can give the creditor the bank account)

Approaches to Dividing Property Upon Divorce

-Community property -Equitable division of all property by each spouse -Equitable division of marital property

Examples of Outrageous Conduct (IIED)

-Conduct that is repetitive in nature -Defendant is common carrier or innkeeper & distresses customer -Plaintiff is member of a fragile class of persons (young, elderly, pregnant women) -Defendant had advance knowledge that plaintiff was extremely sensitive about something and targets that sensitivity

Attorney-Client Privilege

-Confidential communications -Between attorney and client -Made during professional legal consultation -Unless the privilege is waived or an exception is applicable

How to form an agency relationship?

-Consent by both parties, formed expressly or by implication -agent must be acting primarily for the benefit of the principal -Agent must act subject to the principal's control (but it doesn't have to be a lot of control) -Statute of frauds may require a writing

Two types of implied consent in intentional torts

-Custom and usage: go to a place where invasions are frequently known to happen, consent to that activity -Defendant's reasonable interpretation of plaintiff's objective conduct & surrounding circumstances

Elements for Products Liability Strict Liability Claim

-Defendant is a merchant who typically sells goods of this type (privity of contract isn't required) -Product is defective -Product hasn't been altered since leaving Defendant's control (presumption in favor of this) -Plaintiff was making foreseeable use of the product at the time of injury

Factors for determining if an association rises to the level of a partnership

-Do they share profits? (most important) (sharing of revenues doesn't count) -Person's right to participate in the control of the business (even if they never exercise that power)

Types of Self-Authenticating Documents

-Domestic public documents bearing a seal, and similar official foreign public documents -Official publications -Certified copies of public records or private records on file in a public office -Newspapers and periodicals -Trade inscriptions and labels -Notarized documents -Commercial paper and related documents -Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

When is the plaintiff's accident history admissible?

-Evidence that a plaintiff has made previous similar false claims is usually relevant to prove that the present claim is likely to be false -If the cause of of plaintiff's damages is at issue, evidence that the plaintiff previously injured the same part of their body can be admitted to show that the plaintiff's condition is attributable to the prior injury

Conditional Revocation of a will

-Express conditional revocation: this will is revoked only if X happens -Implied conditional revocation: "dependent relevant revocation"

When is a constructive trust an appropriate remedy?

-Heirs under will physically restrained decedent from signing a new will disinheriting them such that the decedent died -state doesn't have a slayer statute -breach of confidential relationship

Exceptions to the special standard of care for children

-If the child is engaged in an adult activity, we apply the reasonably prudent person standard.

How much weight is the preference of the child given when deciding their best interest?

-If the child is under 8, we don't consider their preference -If the child is over 12, we give their preference great weight

Exceptions to the Record Owner Rule

-If the corporation reacquires the stock -Shareholder dies (executor votes the shares)

When can a witness be rehabilitated with a prior consistent statement?

-If the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut this evidence -If the witness's testimony is impeached on some different ground, counsel may introduce a prior consistent statement made by the witness if, under the circumstances, it has a tendency to rehabilitate the witness's credibility

Standard the judge uses to decide whether to admit felonies to impeach

-If the witness being impeached is a criminal defendant, the court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect -For all other witnesses, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect

What is considered principal in the trust?

-If you sell an asset of the trust, all monies received are principal, including the return of the investment -Eminent domain awards -Insurance proceeds of destroyed principal -Stock dividend, stock split, or shares received because of a merger or reorganization

antenuptial agreement

An agreement made between two people before they are married. Sometimes called a premarital agreement.

When is evidence offered to prove the sexual behavior of a victim admissible?

-In a criminal case, specific instances of a victim's sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. -In a criminal case, specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove consent. -In a civil case, evidence of the alleged victim's sexual behavior is admissible if it isn't excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

Can a trustee terminate a trust?

-In some states, if the trust is of a sufficiently low value (normally 50,000), the trust can be terminated as uneconomical -Trustee might be able to combine trusts with the same terms into one or divide a trust into two different trusts

Requirements for a Valid Premarital Agreement

-In writing and signed -Entered into voluntarily (if the agreement is done the night before the wedding, one spouse saying it has to be signed so they can walk down the aisle, don't let your lawyer look at it, maybe not voluntary) -Full disclosure or independent knowledge of assets (only considered if the agreement is unconscionable.

Consequences of Forming a Corporation

-Internal affairs rule -Entity status (the corporation is a legal person) -Double taxation (the corporation pays income tax and the shareholders also pay income tax once profits are distributed) -Limited Liability

When can a conviction not be used to impeach?

-It was more than ten years since conviction or date of release -Conviction was subject to a pardon or equivalent procedure and (1) the pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony; or (2) the pardon was based on innocence -Juvenile convictions -Constitutionally defective convictions

Two Conditions for Recognition of Judgments

-Judgment rendered by court in rendering jurisdiction -Party wants judgment recognized by court in recognizing jurisdiction

Requirements of a valid will

-Legal capacity -Testamentary capacity -Testamentary intent -Formalities (depends on the type of will)

Valid excuses justifying the admissibility of secondary evidence

-Loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith -The original cannot be obtained by any available judicial process -The original is in the possession of an adversary who, after due notice, fails to produce the original

Requirements for Directors in a Corporation

-Must be adult natural persons -Only need one or more -Initial directors are named in the articles or elected by the incorporators at the initial meeting -Afterwards, shareholders elect new directors -Shareholders can remove directors before their term exires

Proper formalities of an attested will

-Must be in writing -Must be signed by testator or by a proxy -Need witnesses (normally two) who are credible (meaning they can testify in court), some states impose a minimum age.

Methods that a board of directors can take to act

-Must have unanimous agreement in writing

Fiduciary Duties of a Trustee

-Must maintain property in trust with reasonable care -Must maintain the utmost degree of loyalty -Becomes personally liable for any lapses below the standard of care -Must keep accurate records and render accountings upon demand.

Requirements for a meeting of the board of directors

-Need a quorum (majority of all directors) -Majority of those present at the meeting is required to pass a resolution

Can beneficiaries modify a trust without the consent of the settlor?

-Need to get all beneficiaries to agree, including any contingent & remote beneficiaries. -The settlor's intent cannot be frustrated by the modification. Ask if the modification would upset a material purpose of the trust.

When can the prosecution introduce evidence of a victim's character?

-Once the defendant has introduced evidence of a victim's bad character for a pertinent trait, the prosecution may rebut with reputation or opinion evidence of: (1) the victim's good character for the same trait, or (2) the defendant's bad character for the same trait -In a homicide case in which the defendant pleads self-defense, evidence of any kind that the victim was the first aggressor opens the door to evidence that the victim had a good character for peacefulness

Wrongful Dissociation

-Partner's dissociation is in breach of an express term of the partnership agreement -In a term partnership: when a partner withdraws, is expelled, or becomes bankrupt before the end of the term -Liable to the partnership for any damages due to dissociation

Exceptions to the Physician-Patient Privilege

-Patient puts their physical condition in issue -Physician's assistance was sought to aid wrongdoing -The communication is relevant to an issue of breach of duty in a dispute between the physician and patient -The patient agreed by contract to waive the privilege, or -It is a federal case applying the federal law of privilege

Second Restatement choice of law policy principles

-Policy of forum state -Policies of other connected states -Reasonable expectations of the parties (pushes towards a choice of law that would render contract enforceable)

What is considered nonhearsay?

-Prior inconsistent statement under oath -Prior consistent statement under oath -Prior identification -Statement made or adopted by a party

Prior Consistent Statement of a Witness

-Prior statement -By a testifying witness who is subject to cross-examination -Prior statement is consistent with the declarant's in-court testimony -Statement is offered to rehabilitate a witness whose credibility has been impeached

Prior Inconsistent Statements of Testifying Witnesses

-Prior statement -Inconsistent with the declarant's in-court testimony -That was given under oath at a prior proceeding -by a testifying witness who is subject to cross-examination

Prior Identifications of Testifying Witnesses

-Prior statement -That is one of identification of a person -As someone the witness perceived earlier -Statement is made by a testifying witness who is subject to cross-examination

Dissenting Shareholder's Right of Appraisal

-Shareholders dissatisfied with the terms of a fundamental change are permitted to compel the corporation to buy their shares, unless the corporation's shares listed on the national securities exchange, or held by more than 2,000 shareholders. --> Right exists in close corporations! -Shareholder must make a written demand, and the corporation must respond within 20 days. -Shareholder must abstain from voting or vote against the proposed change. -Corporation must pay "fair value," and the court may appoint a court appraiser if necessary.

Factors when considering when awarding alimony

-Standard of living during marriage -Duration of marriage -Age and physical and emotional conditions of both parties -Financial resources of each party -Contribution of each party to the marriage -Time needed to obtain education or training to help a spouse become independent -Ability of payor spouse to meet own needs -Marital Fault

Presumptions as to Revocation

-The burden who is trying to prove the will valid has the burden to prove the testator didn't revoke it. -Presumption of non-revocation if the will is found in a normal location and there are no suspicious circumstances. -Presumption that a will is revoked if you don't have the original

How can unwed fathers establish their paternity rights?

-The child will be considered theirs if, after the birth of the child, the father marries the mother, holds the child out as his biological child, consents to be named on the birth certificate, court order declaring paternity, or acknowledged paternity in a formal document.

What states have jurisdiction to modify child support orders?

-The court that created the order has continuing exclusive jurisdiction to modify UNLESS no parties reside in the state or the parties consent to jurisdiction elsewhere

What states have jurisdiction to enforce child support arrangements?

-The court that first issued the child support arrangement -Another state can enforce a child support order by (1) direct enforcement (the person receiving child support can mail the order to obligor's employer in another state) or (2) registration (the child support order from state A is registered in state B so state B can enforce it)

How to prove handwriting is genuine?

-The opinion of a lay witness who has familiarity with the alleged writer's handwriting in the course of normal affairs -The opinion of an expert who has compared the writing to samples of the alleged writer's handwriting; or -The fact-finder's comparison of the writing to samples of the alleged writer's handwriting

When are vicarious statements considered nonhearsay admissions of party-opponents

-The statement of a person authorized by a party to speak on its behalf can be admitted against the party -Statement by an agent or employee is admissible against the principal if the statement: (1) concerned any matter within the scope of their agency or employment, and (2) was made during the existence of the agency or employee relationship. -After a partnership is shown to exist, a statement of one partner relating to matters within the scope of the partnership business is binding upon their co-partners -Statements of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at the time when the declarant was participating in the conspiracy, are admissible against co-conspirators.

When are duplicates admissible?

-They are generally admissible to the same extent as an original (meaning you don't need an excuse) unless: 1. Admitting it would be unfair, such as where it is blurry or 2. There is a genuine dispute as to the authenticity of the original

Why do people create trusts?

-To protect and provide for beneficiaries -Flexibility of asset distribution -To protect the settlor in case they become incompetent -Get professional management of property -Probate avoidance (with inter vivos trusts, property doesn't go through probate) -Significant tax benefits can be used by creating a trust

Elements of Trust Validity

-Trust intent -Identifiable corpus -ascertainable beneficiaries -proper purpose -complies with the requisite formalities and mechanics

When is a trustee not liable for breaches of trust?

-Trustee reasonably relied on the terms of the trust -Beneficiaries consented the breach -Settlor specifically allowed that conduct -Trust contains an exculpatory clause

Rights of Unmarried Persons

-Usually agreements of property rights and division of earnings -K's between cohabitants are valid unless sex is only consideration

Common Non-Truth Purposes

-Verbal acts or legally operative facts -Statements offered to show their effect on the listener or reader -Statements offered as circumstantial evidence of declarant's state of mind

When is a judgment issued by one court subject to recognition and enforcement in a second court?

-Was the rendering jurisdiction a sister state or a foreign country? -Is the judgment entitled to full faith and credit or comity?

When does the best evidence rule apply?

-Where the writing is a legally operative or dispositive instrument OR -Where the knowledge of a witness concerning a fact results from having read it in the writing

What can a juror testify to?

-Whether any extraneous prejudicial information was improperly brought to the jury's attention -Whether any outside influence was improperly brought to bear on any juror -Whether there is a mistake on the verdict form -Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant

Fairness factors for Offensive Non-mutual issue preclusion

-Whether the party to be bound had a full opportunity to litigate in the first case -Whether the party to be bound had a strong incentive to litigate in the first case -Whether the party asserting issue preclusion could have easily joined the first case -There are no inconsistent findings on this issue (something Joey is found negligent, sometimes he isn't)

Risk of Loss Rules

1) Agreement allocates risk then that agreement controls. 2) Breach - breaching party is liable for any uninsured loss even though breach is unrelated to problem If seller is merchant: risk of loss is on them until buyer receives goods 3) Delivery by common carrier other than seller: risk of loss shifts from seller to buyer at the time seller completes delivery obligations 4) None of the above... If Seller is MERCHANT - risk shifts from merchant-seller upon buyer's receipt of goods. If non-merchant seller, risk shifts when he "tenders" the goods.

Affirmative Defenses to Defamation

1) Consent 2) Truth 3) Privileges: absolute privileges / qualified privileges

Where to File Financing Statement

1) General rule: Secretary of state. 2) Real property: Local county where the real property is located.

Accessions: Priority

1) General rule: previously discussed priority rules apply (First to File or Perfect, special PMSI rules). 2) Exception: SI in the whole perfected by compliance with the requirements of a certificate of title statute > SI in accession.

Rights and Duties of Co-Tenants

1) Possession (no wrongful exclusion from part/whole) 2) Unless there has been an ouster, co-tenant in exclusive possession isn't liable to the others for rent 3) Fair share of rent from third parties 4) No adverse possession unless ouster 5) Each pays fair share of carrying costs (based on their individual share of the whole) 6) Repairing co-tenant enjoys the right to contribution for any reasonable, necessary repairs with notice 7) No right to contribution for unilateral improvements. At partition, improver gets credit or debit based on any added/lost value due to improvement 8) Waste (voluntary, permissive, ameliorative)

Requirements for Adoption

1) Termination of biological parents' rights and 2) Creation of new parent rights. Don't allow payment for adoption except for pregnancy expenses.

Fundamental Corporate Change Requirements

1) a majority of the board of directors adopts a resolution recommending the change; 2) notice of the proposal is sent to all shareholders at least 10 days in advance of the meeting, but not more than 60 days in advance. 3) shareholder votes are cast and approved of by a majority of the shares entitled to vote 4) deliver document to secretary of state

Battery (torts)

1) harmful or offensive contact; 2) with the plaintiff's person 3) intent 4) causation

Which shareholders get dividends?

1) preferred shareholders 2) common shareholders

Requirements for Attachment

1- Security Agreement 2- Value has been given 3- Debtor has rights in the collateral

Fault Grounds for Divorce

1. Adultery 2. Willful desertion for a specified time 3. Extreme physical or mental cruelty 4. Voluntary drug addiction or habitual drunkenness commencing after the marriage 5. Insanity

Fundamental Corporate Changes

1. Amend the articles 2. Merge or consolidate into another company 3. Transfer substantially all assets (or have stock acquired in "share exchange") 4. Convert to another form of business 5. Dissolve

Exceptions to the attorney client privilege

1. Attorney's services were sought to help the client commit a crime or fraud 2. Where the client has put the legal services at issue in the case 3. For a communication relevant to an issue of breach of duty in a dispute between the attorney and client 4. Regarding a communication relevant to an issue between parties claiming through the same deceased client.

Defenses to fault-based divorce

1. Collusion 2. Connivance 3. Condonation 4. Recrimination

Exceptions to negligence per se

1. Compliance with the statute is more dangerous than violating the statute 2. Compliance is impossible under the circumstances

Affirmative Defenses to Privacy Torts

1. Consent 2. Absolute and Qualified Privilege for false light/disclosure

Termination of Spousal Support

1. Death of either party 2. Remarriage of the obligee 3. Cohabitation: obligee cohabitated with another person (of either sex) in the manner of married persons.

Ways to Dissociate from a Partnership

1. Dissociation by Express Will 2. Partner being expelled from the partnership 3. Partner dying 4. Partner declaring bankruptcy 5. Declaring a receiver for a partner 6. Any other agreed upon manner

Agent's Duties to the Principal

1. Duty of Loyalty 2. Duty of Obedience 3. Duty of Care

Methods of Rehabilitation

1. Explanation on redirect 2. Good reputation or opinion for truthfulness by calling other witnesses 3. Prior consistent statement

Duress Defense

Defense to crime, other than intentional homicide, that defendant reasonably believed another person would imminently inflict death or great bodily harm if defendant didn't commit crime. Always involves a human threat.

Requirements for Issue Preclusion

1. Final judgment on the merits. 2. Same issue was actually litigated and determined 3. Issue was essential to the judgment (finding on that issue is the reason for the judgment) 4. Asserted against actual party to previous case, or new party is in privity with old party 5. Party asserting issue preclusion must be able to assert it

Assignments for Consideration

1. First assignee for consideration has priority over all subsequent assignees and over all creditors. 2. Exceptions: Without notice of prior assignments and A) First to obtain a judgment; B) First to receive payment; C) Enters into a new contract by novation; D) First delivery of tangible token or writing; E)Can set up estoppel against first assignee.

Principal's Duties to Agent

1. If agent incurs expenses or suffers losses in carrying out the principal's instructions, principal has a duty to indemnify the agent 2. Unless agreed otherwise, principal has a duty to compensate the agent

Exceptions to rule that all directors are liable for breach of board's fiduciary duty

1. If you are absent the day of the vote, not liable 2. Good faith reliance: Relied on information presented by an officer or committee D isn't a part of

Combination wills

1. Joint wills: Single testamentary document containing the wills of two or more persons, typically a married couple - Dispositions are parallel 2. Reciprocal wills, aka "sweetheart wills" - Two separate wills containing parallel dispositive provisions 3. Contractual wills: Will executed or not revoked as the consideration for a contract - "Testator agrees to leave entire estate to X if X takes care of Testator in Testator's old age." -Can be revoked by either party while they are both alive - Consideration required

Defenses to Full Faith and Credit

1. Judgment is a penal judgment (offense against the public, punitive damages) 2. Judgment is subject to an equitable defense in the rendering state (e.g. judgment was obtained by extrinsic fraud)

Grounds for contesting a will

1. Lack of capacity or intent 2. Defective execution (i.e. lack of formalities) 3. Undue influence, fraud, or mistake 4. Revocation 5. Testator had an insane delusion (consistent belief in a set of facts that is against all evidence, probability & control) that had a relation to the property disposition

Undue Influence when contesting a will

1. Must show that the influence actually existed and was exerted 2. Influence overpowered the testator's mind such that resistance was futile 3. Influence caused the testator to execute a will with different terms than the testator otherwise would have created

Methods of Authentication of Documents

1. Parties may admit the genuineness of a document by the pleadings or by stipulation 2. Evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic 3. Testimony of anyone who saw it executed or heard it acknowledged 4. Evidence that the maker of a writing's handwriting is genuine 5. The document is an ancient document 6. Reply letter doctrine

Marital Contracts

1. Pre-marital 2. Separation agreements

Requirements of Written Security Agreement

1. Record showing intent to create security interest 2. Authenticated by the debtor 3. Agreement must reasonably identify the collateral

Requirements for Claim Preclusion

1. Same plaintiff v. Same defendant 2. Case one must have been a valid final judgment on the merits 3. Both cases are asserting the same claim (majority view T/O, minority view primary rights view (separate claims for personal injury and property damage))

Where do shareholders vote?

1. Shareholders usually take action at a meeting. Instead, they can act by unanimous written consent signed by holders of ALL voting shares (email is OK).

Duty of Loyalty in Fiduciary Duty

Agent owes principal a duty of undivided loyalty. Means (1) agent must account to the principal for any profits made while carrying out the principal's instructions; (2) the agent must act solely for the benefit of the principal and never for the benefit of themselves or a third party; (3) agent must refrain from dealing with the principal as an adverse party or acting on behalf of an adverse party; (4) agent may not compete with the principal concerning the subject matter of the agency and (5) agent may not use the principal's property for the agent's own purposes or a third party's purposes.

officers of corporation

Agents appointed by the board who carry out corporation's policy

When does an agreement become legally enforceable?

Agreement + Something More (typically consideration)

Conspiracy

Agreement between two or more persons Intent to enter into agreement Intent to achieve unlawful objective Overt act required by a majority of the states.

Accord and Satisfaction

Agreement to accept different performance to satisfy existing duty

Novation

Agreement to substitute a new party for an existing party

Exclusion of Aliens

Aliens have no right to enter the United States and can be refused entry because of their political beliefs. However, resident aliens must get notice and a hearing before they can be deported.

Lump Sum Support

Alimony award of a specific amount of money, usually payable in a single installment. Not modifiable and binding on the payor's estate.

Rehabilitative Support

Alimony awarded to one spouse so that the spouse's earning capacity can increase & the spouse won't be economically dependent on the other spouse. Ex: $X per month for 36 months to gain education or skills. Can be changed due to substantial change in circumstances. Can be awarded with other forms of alimony.

Reimbursement Support

Alimony granted when one spouse paid for the other to get a degree during the marriage. Can be awarded in conjunction with other forms of alimony.

Who joins in removal?

All defendants served with process must join. Earlier-served defendants may join later-served defendant's removal even if 30-day period is expired

Contract for services must have (to satisfy statute of frauds)

All material terms (who is this K between,pricing,what is the K about?) and defendant's signature

Life Tenant's Rights and Duties

All ordinary uses and profits from the land. Can't commit waste. Future interest holders can bring claim against life tenant if they violate their duties.

Limited Liability Partnership

All partners are limited partners and not responsible for the debts and other liabilities of other partners. Must file a document with the secretary of state informing everyone you are a LLP.

When can a co-defendant's testimony be admitted and not violate the Confrontation Clause?

All portions referring to other defendant can be eliminated, confessing defendant takes the stand and is subject to cross-examination, or confession is used to rebut the defendant's claim that confession was obtained coercively.

Community Property Approach to Dividing Property at Divorce

All property acquired during marriage is actually owned (one half) by each spouse.

Part Performance Doctrine

Allows buyer to enforce oral contract by specific performance if: the contract is certain and clear and acts prove existence of the contract.

Interlocutory Appeals Act

Allows for appeal of nonfinal order if trial judge certifies controlling issue of law with substantial ground for differing opinions.

Latent ambiguity to will

Ambiguity isn't apparent from the face of the will, but when you try to apply it. Extrinsic evid. is allowed but only to determine T's meaning not to change it.

Codicil

Amendment to an existing will. If you prove the codicil, you can prove the will even if the will didn't meet all the requirements of a valid will.

Variants (civ pro)

Amendment to pleadings when the evidence presented at trial does not match what was in the pleadings. If the opposing party doesn't object at trial, then the party introducing the evidence can move to amend the complaint to conform to the evidence.

Amount in Controversy for Equitable Relief

Amount in controversy is determined by looking at the value of relief to the plaintiff or defendant.

Dissolution of an LLC

An LLC will be dissolved when any of the following events occur: -An event or circumstance that the operating agreement says causes dissolution -The consent of all the members -The passage of 90 consecutive days where the LLC has no members. -Judicial dissolution

Disabling Restraint on Alienation

An absolute ban on the power to transfer property. Immediately void

Impleader

An addition of a third party to an action by a defending party. Usually for indemnity or contribution. New party is called third-party defendant. If defendant is found liable, she will try to get third-party defendant to pay for all or part of her claim.

Equal Dignity Rule

An agent's authority must be in writing if the contract to be made on behalf of the principal must be in writing.

Interested Director Transaction

DEFINITION: any deal between the corporation and one of its directors (or a close relative of a director) or another business of the director's. STATE THE DUTY OF LOYALTY STANDARD. THEN: Interested director transaction will be set aside (or the director will be liable in damages) UNLESS the director shows either: (1) the deal was fair to the corporation when entered, OR (2) her interest and the relevant facts were disclosed or known and the deal was approved by either of these: (i) Majority of the disinterested directors, OR (ii) Majority of the disinterested shares. EX: Martha is a director of XYZ, Inc. If she sells wreaths to XYZ, Inc this is interested director transaction.

Mortgagor

Debtor (person owing money to lender)

Legal Custody of a Child

Decision-making authority over the child

Advisory Opinions

Decisions that lack an actual dispute between adverse parties or any legally binding effect on the parties.

What is necessary for a deed to be lawfully executed?

Deed must (1) be in writing, (2) sufficiently describe the land, (3) identify the grantor and grantee, (4) evidence an intention to convey the land, and (5) be signed by the grantor

Libel

Defamation embodied in a permanent form. Damages are presumed.

Near Miss Case of NIED

Defendant almost injured the plaintiff. In addition to regular negligence elements, plaintiff must show: (1) defendant's negligence put you in a zone of physical danger; and (2) plaintiff suffered physical symptoms from distress.

Defense of Others

Defendant has the right to defend others if the defendant reasonably believes that person has the right to use force in their own defense.

Transferred Intent

Defendant intended to harm to different victim or object. We transfer that intent to apply to the thing they actually harmed. Applies to homicide, battery, and arson.

Irresistible Impulse Test

Defendant is entitled to acquittal if, because of mental illness, they are unable to control their actions or conform their conduct to the law

Substantial Factor Test

Defendant is liable if their breach contributed in a significant/substantial way to the ultimate injury.

Limitation of Felony Murder Liability

Defendant must have committed or attempted to commit underlying felony. Felony must be distinct from killing itself. Death must have been foreseeable. Death must have been caused before immediate flight from felony ended.

Defendant's response to a complaint

Defendant must respond by motion or answer within 21 days (or 60 days if the defendant waived service). If the motion is denied, then an answer must be filed no more than 14 days after notice of denial.

Bystander Case of NIED

Defendant negligently injures 3rd party causing Plaintiff emotional distress. In addition to the regular negligence elements, plaintiff must show: (1) Plaintiff and 3rd party are close family members; (2) plaintiff present at the scene and observed event

Tort of Appropriation

Defendant uses Plaintiff's name/image for commercial purpose. Newsworthiness exception.

Continuing Trespass Doctrine

Defendant wrongly takes property without intent to permanently deprive and later decides to keep it. Once they decide to keep the property, they have committed larceny.

Burden of Proof for Insanity Defense

Defendants are presumed sane, defendants must raise the insanity issue. In most states, once the issue is raised, the defendant must prove insanity by a preponderance. In a minority of jurisdictions and MPC, prosecution must prove the defendant is sane beyond a reasonable doubt.

Necessity Defense

Defense that the defendant reasonably believed commission of the crime was necessary to avoid imminent and greater injury to society. Objective test. Defense isn't available if the defendant is the one at fault in creating the situation that required the choice between the two evils.

Consent (torts)

Defense to all intentional torts. If a person with legal capacity to consent does so, no tort was committed. Consent always has a scope, cannot exceed scope.

First Degree Murder

Deliberate and Premeditated. Defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing.

Is a principal liable for tortious acts of the agent?

Depends on if the agent is considered an employee (liable) or an independent contractor (not liable)

Open Mines Doctrine

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

Intent for Torts

Desire to produce the legally forbidden consequence

Wait and See Rule

Determine an interest's validity upon the termination of the preceding life estate. If the interest actually vests or fails within the perpetuities rule, it is good; if it does not, it is void.

4-Step Technique for Rule Against Perpetuities

Determine the future interest (contingent remainder, executory interest, vested remainder subject to open) What has to happen for future interest holder to take Find measuring life When will we know if future interest holder can take?

Fiduciary Duties of a director to their corporation

Director must discharge their duties in good faith and reasonable belief that actions are in the best interest of the corporation. Must also use care that a person in a like position would reasonably believe appropriate under the circumstances.

Liability after improper distribution (biz orgs)

Directors are jointly and severally liable for improper distribution unless there is a good faith reliance defense. Shareholders are personally liable only if they knew the distribution was improper when they received it.

Tort of False light

Dissemination of material falsehood about a plaintiff that would be highly offensive to a reasonable person

Per Capita with Representation

Divide at the first generation with surviving members. So if all children are deceased, all grandchildren take an equal share.

Severance of a Tenancy by the Entirety

Divorce (becomes tenancy in common), death, execution of lien by a joint creditor of both spouses

What types of cases cannot be heard in federal court

Divorce, alimony, child custody, and probate.

What is the requisite intent of the tort of trespass to land?

Do not need to intend to cross a boundary line, only need to intend to be where you are (you walked there on purpose, unknowing that it is someone else's property)

Relatedness Factor for Personal Jurisdiction

Does the plaintiff's claim arise from or relate to the defendant's contacts with the forum? If yes, then specific jurisdiction. If no, need general jurisdiction.

Liability for injuries caused by animals

Domesticated animals: generally not strictly liable for their harm UNLESS you have knowledge of the animal's dangerous propensities Wild animals: strict liability if possessed

Right to an Unbiased Judge

Due process is violated if the judge has actual malice against the defendant or has financial interest in the trial.

Waiver of Due Process Rights

Due process rights are presumably subject to waiver if the waiver is voluntary and made knowingly.

Property Rights of Spouses

During the marriage, each spouse control the property in their own name. But in the event of divorce, title will not be dispositive when equitably dividing that property. Generally if spouses title real estate jointly, tenancy by the entirety is presumed, and then one spouse cannot convey or encumber the property without the consent of the other spouse.

Termination of Easements

ENDCRAMP Estoppel: servient owner materially changes positions in reliance of easement-holder's assurances that easement will no longer be enforced Necessity: when need ends unless in writing Destruction (of servient land, unless wilful by servient owner) Condemnation (of servient land) Release (by holder to servient owner) Abandonment: easement holder has to show physical action demonstrating the intent to never make use of the easement again Merger (easement & servient land held by same person) Prescription: Servient owner is trying to interfere with the easement by impacting elements of adverse possession

Homeowners' Associations

Each condo owner is a member. Oversees common elements. Board enforces covenants, conditions, and restrictions. Might have to pay special assessment.

Shared Custody

Each parent receives a roughly equal amount of time spent with the child

Duty of Disclosure (Partnership)

Each partner and the partnership shall furnish to a partner without demand any information concerning the partnership's business and affairs reasonably required for the proper exercise of the partner's rights and duties and on demand any other information concerning the partnership's business and affairs, unless the business demanded is unreasonable or unproper under the circumstances. Can be eliminated under the partnership agreement

Liability of Partners in a General Partnership

Each partner is individually jointly and severally liable for all of the obligations of the partnership, whether arising in tort or contract. But plaintiff must first exhaust partnership resources before seeking to collect from an individual partnership's assets. But if one partner pays a partnership obligation, he is entitled to indemnification from the general partnership and to require the other partners to contribute their pro rata shares of the payment.

Who has standing to contest a Fourth Amendment violation?

Each person searched must have a reasonable expectation of privacy with respect to place searched or item seized.

Separate Sovereigns Doctrine

Each separate sovereign (e.g. federal, state) is entitled to prosecute an individual who commits a crime that violates laws in each of the sovereign jurisdictions. Double jeopardy does not apply.

Spouses obligation to support

Each spouse has obligation to support the other during marriage:: principles of agency require that one spouse may be liable to third party for other spouse's authorized OR necessary purchases (food, clothing, medical care)

Gift Assignments

Easily revocable and the last gratuitous assignee wins.

Once a criminal defendant opens the door by introducing character evidence, what can the prosecution do?

Either -cross-examine the defendant's character witness regarding the basis for their testimony by asking "Have you heard?" or "did you know?" questions about specific acts of the defendant that show the defendant's bad character -the prosecution can call its own character witnesses to provide reputation or opinion testimony about the defendant's bad character for the trait in question

Assault

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

Annulment

Ending a marriage because it was defective for some reason. Available for defective marriages that are void or voidable.

Invitee (torts)

Enter land with permission for financial benefit of possessor. Includes land that is open to the public at large, even if invitees aren't conveying an economic benefit.

Disgorgement

Equitable recovery principal can recover from agent for violating fiduciary duty. Must give up wrongfully-gained profits

Constructive Trust

Equitable remedy designed to prevent unjust enrichment where equity turns the holder of legal title into a trustee when the person cannot in good conscious retain the beneficial interest in the property. This is a remedy in litigation.

Marriage by Estoppel

Equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering an invalid marriage. Ex: one party marries someone who is already married (but didn't know they were already married)

Patent ambiguity to will

Error that is apparent from the face of the will. Extrinsic evidence will be allowed to determine what the testator meant. However, court can't fill in blank spaces.

Impeachment by Bias or Interest

Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie. Majority rule is that before a witness can be impeached by extrinsic evidence of bias, they must first be asked about the facts that show bias on cross

Evanescent Evidence

Evidence that might disappear quickly if police took time to get a warrant. Can be taken without warrant.

Trust termination by operation of law

Ex: property is exhausted, merger of legal & equitable title

What counts as a restraint for the tort of false imprisonment?

Locking someone in a room, physically holding them back, credible threats (if you leave I will shoot you), omission can be restraint if there is a duty.

Ratification

Even if the agent had no authority at the time of entering into a contract, the principal will still be bound by the agent's actions if the principal "blesses" the contract.

Dormant Commerce Clause

Even where Congress has not acted, the Commerce Clause restricts state regulation of interstate commerce; states may not favor local economic interests or unduly burden interstate commerce.

Conditions Subsequent

Events after performance that could terminate duty to pay

Annual Shareholder Meeting

Every corp. must have an annual meeting at which at least one BOD slot is up for election. The notice must include a time and place. If no annual meeting is held within 15 months, a shareholder can petition the court to hold one.

Industry Custom as Evidence of Standard of Care

Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of the appropriate standard of care (to show how the party in the current case should have acted

Statement of Absence of Public Record Exception

Evidence in the form of testimony or a certification from the custodian of public records that they have diligently searched and failed to find a record is proof that the matter was not recorded.

Relevant Evidence

Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Fruit of the Poisonous Tree

Evidence obtained from exploitation of unconstitutionally obtained evidence can't be introduced at trial.

Admissibility of civil settlements and settlement negotiations

Evidence of a compromise or an offer to compromise a civil claim is not admissible in any case to: (1) prove or disprove the validity or amount of a disputed claim, or (2) impeach a witness by prior inconsistent statement or contradiction. Conduct or statements made in the course of negotiating a compromise, including direct admissions of liability, are also inadmissible for these purposes.

Defendant's Similar Misconduct in Sex-crime cases

Evidence of a defendant's other acts of sexual assault or child molestation is admissible in a criminal or civil case where the defendant is accused of committing an act of sexual assault of child molestation. The party intending to offer this evidence must disclose it to the defendant 15 days before trial or later with good cause.

Admissibility of Liability Insurance

Evidence of a party's insurance against liability (or lack thereof) is not admissible to show whether the party acted negligently or otherwise wrongfully. This evidence is admissible: -to prove ownership or control, if disputed; -to impeach a witness (usually to show their bias) or -as part of an admission of liability, where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability

When is the defendant's accident history admissible?

Evidence of prior accidents or injuries caused by the same event or condition and occurring under substantially similar circumstances is admissible to prove: (1) the existence of a dangerous condition, (2) that the dangerous condition was the cause of the present injury, and (3) that the defendant had notice of the dangerous condition

Evidence of Subsequent Remedial Measures

Evidence of repairs or other precautionary measures made following an injury isn't admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. It may be admissible for some other relevant purpose, such as: -to prove ownership or control, if disputed -to rebut a claim that a precaution was not feasible; or -to prove that the opposing party has destroyed evidence

Admissibility of Payments of and offers to pay medical expenses

Evidence that a party has paid or offered to pay an injured person's medical, hospital, or similar expenses is inadmissible to prove liability for the injury. However, admissions of fact accompanying such payments and offers are admissible.

Implied Affirmation after Gaining Capacity

Look for a minor retaining the benefit under K after reaching 18.

Transferability of Ownership interests in an LLC

Financial rights can be unilaterally transferred, management rights require unanimous approval of all members.

Types of Sanctions

Fines, community correction orders, requiring a lawyer to attend professionalism classes, imprisonment

Intestacy Succession

First goes to surviving spouse if there is one. Anything left after spouse's share goes to descendants.

Unperfected Secured Creditor versus Unperfected Secured Creditor

First to attach has priority

Perfected Secured Creditor versus Perfected Secured Creditor

First to file or perfect has priority

Exceptions to the Double Jeopardy Clause

First trial ends in a hung jury Manifest necessity to abort first trial Defendant successfully appealed conviction (unless ground for reversal was insufficient evidence) Defendant breached plea bargain Defendant could have been tried for multiple charges in single trial but chose to do them in separate trials

Testamentary capacity to create a will

Five basic elements: -Must understand the action that you are doing -Must understand the effect of what you are doing -Must understand the nature and extent of your property -Must recognize the natural objects of your bounty (you would recognize your family members) -You must do the other four simultaneously

Fund the trust

For a trust to be valid, we must actually transfer (deliver legally) the property from the settlor to the trustee.

Modification of Spousal Support

For permanent periodic or rehabilitative alimony, modifiable upon a substantial and continuing change of circumstance. Most courts say a voluntary reduction of income isn't enough.

Privilege for Confidential Marital Communications

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged. Either spouse can refuse to disclose the communication or prevent any other person from doing so. Marital relationship must exist when the communication is made. Divorce will not terminate the privilege, but communications after divorce aren't privileged. Threats or abusive language aren't privileged. Communications made in the known presence of a third party aren't privileged unless made in front of young children living in the home.

Remedies for Breach of Fiduciary Duty

In general, a court can do whatever it wants to "do justice" in the situation.

History and Tradition Approach to the Establishment Clause

In some cases, the Court will find that a government religious display or practice is a tolerable acknowledgment of the role religion has played in the history and tradition of the nation.

Merged Causes

In this case, you will have two defendants who will be independent actors. Both will commit a breach and their combined breaches will release a harmful force into the world. Use the substantial factor test for but for cause. Use joint and several liability for damages

Liability to third parties in a partnership

In tort, a partnership is liable to a person as a result of the tortious conduct of a partner acting in the ordinary course of the business of the partnership or with authority of the partnership. In contract, a partnership is liable for contracts entered into on its behalf by partners with actual or apparent authority.

Revoking a proxy

In writing to the secretary of the corporation OR by attending meeting and voting. Not irrevocable unless it is combined with an interest.

Public Officials for Defamation

Include people (1) holding or running for elective office and (2) public employees in positions of public importance

Separate Property (family law)

Includes all real and personal property owned by a spouse before marriage, assets included in retirement accounts, property acquired at any time due to gift or inheritance, property acquired in exchange for property owned before marriage, income and appreciation of separate property, pain and suffering awards, personal damages awards, property acquired after an order of legal separation.

What is considered "the plaintiff's person" for the tort of battery?

Includes anything the plaintiff is touching or holding

Gifts in Contemplation of Marriage

Includes engagement rings and wedding gifts. Are conditioned upon the subsequent ceremonial marriage taking place. If the marriage doesn't take place then all gifts in contemplation of marriage are recoverable by the donor

Liberty

Includes more than just physical freedom. A deprivation of liberty occurs if a person: loses significant freedom of action or is denied a freedom provided by the Constitution or a statute.

Property under the Due Process Clause

Includes not only personal and real property, but also government benefits to which there is an entitlement under state or federal law.

Fault Divorce for Cruelty

Includes physical or mental cruelty. Look for pattern of mental abuse.

What is a Religious Belief?

Includes those of traditional religions, as well as beliefs that play a role in the life of believers similar to the role that religion plays in the life of traditional adherents.

Trade Usage

Industry norms parties are aware (or should be aware) of. Can be used to interpret current contract.

Initial Required Discovery Disclosures

Information that each party must give to the other parties even though the parties haven't asked for it. Names, numbers, and addresses of people with discoverable information if it might be used to support claims or defense (info that helps you); documents if they might be used to support claims or defenses & are in your control. Computation of damages (how you got to your damages) and insurance coverage

But for Test

Injury would not have occurred but for the breaching act or omission

Incorporation by reference (dead law)

Instead of writing something out full in the will, you can reference another document and effectively incorporate it into your will. The document in question must be an existing document when it is incorporated.

Transferred Intent (torts)

Intent of tortfeasor is transferred when he intends to harm person "A" but unintentionally harms person "B" as well. Intent can transfer from one intentional tort to another (intent to commit assault can turn into intent to commit battery)

Malice aforethought

Intent to kill, intent to inflict great bodily injury, reckless indifference to an unjustifiably high risk to human life, intent to commit a felony.

Trespass to Chattels

Intentional interference with Plaintiff's personal property that warrants Defendant pay damages.

Transfer or conveyance of trust

Inter vivos trust where the settlor and trustee are different people.

Selecting a Choice of Law when dealing with personal property

Inter vivos: law of situs at the time of the transaction Inheritance: law of decedent's domicile on date of death

Non-Probate Assets

Interests in property not subject to disposition under will or via intestacy. Must be removed from the estate before you start distributing property.

Determining interrogation for Miranda

Interrogation is any words or conduct by police that they should know would likely elicit an incriminating response. Miranda warnings aren't required before spontaneous statements.

Contention Interrogatories

Interrogatories that inquire about your legal contentions. These are fine to send.

Fundamental Rights

Interstate travel, voting, First Amendment rights, privacy-related rights

Tort of Intrusion

Invasion of Plaintiff's seclusion in a way that would be highly offensive to a reasonable person. Ex: peeping tom, wiretapping, etc.

Trespass

Invasion of land by tangible physical object

Factors for determining whether an issue is substantive for Erie purposes

Is the issue outcome determinative? If so, it is probably substantive and we should use state law. Balance interest factors Avoid forum shopping

Steps when Analyzing Evidentiary Search or Seizure

Is there state action? Is there standing? Is there a valid warrant? If no valid warrant, does an exception apply?

What are matters of public concern for defamation

Issues important to society or democracy. The courts decide on a case-by-case basis whether the defamatory statement involves a matter of public concern, looking at the content, form, and context of the publication

Neutral and Detached Magistrate

Issuing officer of the warrant can't be unalterably aligned with the police or prosecutor's position in the case

Modification of an Existing Decree of Child Custody

Issuing state exercises continuing, exclusive jurisdiction to modify the order. Only if no parent or child continues to reside in the state, or if the child no longer has a significant connection with the state, can another state court exercise jurisdiction.

What happens to the defamation claim of a deceased person?

It becomes not actionable

How does a corporation get money?

It can borrow that money or it can raise the money by selling stock

Under UCC, what happens if offeree adds terms upon acceptance

It counts as acceptance but the terms won't be part of the contract unless both parties are merchants, the terms aren't material, and the offeror doesn't object

Legal Separation

It is a court judgment that ends the right to cohabitate or live together. This can also temporarily decide child custody issues and monetary support. The couple will remain legally married until there is a divorce, but any property acquired by a spouse after separation will be separate property.

When is an offeree's new terms to a contract a material change?

It is a material change if it is likely to cause hardship or surprise

When is character evidence admissible in civil cases?

It is generally inadmissible to prove conduct in conformity. When proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense, it is said that character is directly in issue (think defamation, negligent hiring or entrustment, or child custody)

Partnership Property

It is the partnership's property if it is acquired in the partnership's name, or it is acquired in a partner's name where it is apparent from the document that she is acting for the partnership. Presumed to be partnership property if partnership funds are used. Presumed to be a partner's property if its acquired in her name without partnership funds and there is no sign it is owned by the partnership.

What is a child's home state when determining custody and child support?

It is where the child has lived with a parent for at least six months.

Division of a professional license or degree in a divorce

It isn't marital property, but courts consider it when making an award of alimony if one spouse put the other through school

Testamentary Intent to create a will

It means you intend the document you are creating to be a will.

Proximate Cause

Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.

Vicarious Liability

Legal doctrine under which a party can be held liable for the wrongful actions of another party. Look for employer/employee & independent contractors/hiring party

Privity of Estate

Legal relationship between two parties with a common interest in the same property. Nexus that parties share by virtue of a possessory interest.

Delivery requirement of a deed

Legal standard testing grantor's present intent to be bound. Grantee must also accept title for delivery to be accomplished

Duty

Legally imposed obligation to take risk-reducing precautions for the benefit of others.

Scrutiny applied to state impairments of public contracts

Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the legislation will likely receive heightened scrutiny, especially if the legislation reduces the contractual burdens on the state

Scrutiny applied to state impairments of private contracts

Legislation that substantially impairs an existing private contract is invalid unless the legislation: (1) serves an important and legitimate public interest, and (2) is a reasonable and narrowly tailored means of promoting that interest.

Delegation of Legislative Power

Legislative Power may generally be delegated to the executive branch or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress

Bills of Attainder

Legislative acts that inflict punishment on individuals without a judicial trial.

Choice of Law in Child Legitimacy

Legitimacy of the child at birth are governed by the mother's domicile at the time of child's birth. Subsequent acts of legitimacy after birth are governed by the law of father's domicile.

Purchase-Money Mortgage

Lender's security interest in real estate that their loan enables debtor to acquire

Speedy Trial Factors

Length of delay, reason for delay, whether defendant asserted the right, prejudice to the defendant.

When are damages presumed in a defamation case?

Libel cases, slander per se

Agency Adoptions

Licensed agents act as intermediaries to facilitate the adoption.

Conditions

Limit obligations created by contract language. Express conditions must be perfectly satisfied or there is no obligation. But cannot sue for breach if a condition isn't satisfied.

Private Necessity Defense

Limited defense to property torts. Applies if the defendant acts in an emergency to protect his own interests. Legal consequences: 1) defendant must pay compensatory damages to the plaintiff who owns the property; 2) not liable for nominal/punitive damages; 3) defendant can stay as long as emergency continues

Contract Clause

Limits the ability of state and local governments to enact laws that retroactively impair contract rights.

Depositions

Live testimony of parties or non-parties, under oath, given in response to questions by counsel

How are profits and losses split in an LLC?

Profits and losses are split based on your contribution.

Restrictions on Assignments

Prohibition: Assignments not permitted (assignee without knowledge can still collect) Invalidation: Assignments null and void

Privileges and Immunities Clause of Article IV

Prohibits discrimination by a state against nonresidents when the discrimination concerns either important commercial activities or fundamental rights. The Clause only applies if the discrimination is intentionally protectionist in nature. If the state law burdens an important commercial activity or fundamental right, it will be invalid unless the law is necessary to achieve an important government purpose and there are no less restrictive means available.

Free Exercise Clause

Prohibits the government from punishing someone on the basis of their religious belief or related religious status or conduct.

Covenant

Promise to do or not do something. Remedy is money damages.

Pre-incorporation contracts

Promoter (person acting on behalf of co not yet formed) can enter into contracts on behalf of co. Co isn't liable on pre-incorporation until it ADOPTS the contract. Unless contract says otherwise, promoter remains liable on pre-incorporation contracts until there has been a novation. Adoption makes co liable too, but doesn't relieve promoter.

Marital Property

Property acquired during a marriage, by one or both spouses, including earnings, employment benefits that accrued during marriage, pensions earned during marriage, recovery for lost wages during the marriage, reimbursement for medical bills incurred and paid with marital property, recovery for damage to marital property etc. Such property is considered to be owned equally by both spouses.

Wasting Assets

Property that goes down in value as they are used (deferred compensation arrangements, intellectual property rights, natural resources). Follow a 10/90 allocation scheme for trusts (10% is income, 90% is principal)

Identifiable Corpus

Property the Settlor owns, including tangible and intangible property. Must be ascertainable with certainty. You cannot transfer property you don't have a current right to transfer or property you don't own yet.

What happens if a person who dies intestate doesn't have descendants?

Property will be distributed to ancestors and collateral. If both parents survive, each gets half. If no parents survive, goes to brothers & sisters and their descendants. If you don't have any of those people, we go to second-line descendants (grandparents and their descendants)

Effective Incorporation

Proprietors of a business thought they had formed an incorporation but they failed to do so. Two doctrines in this scenario that allow proprietors to escape liability. (1) de facto corporation; (2) corporation by estoppel

When is evidence of a defendant's character in a criminal case admissible?

Prosecution cannot initiate evidence of the defendant's bad character to show conduct in conformity. The defendant is permitted to introduce evidence of their own good character to show their innocence. If the defendant introduces evidence of their good character, then the prosecution can rebut with evidence of the defendant's bad character

Prosecutor Comments on Defendant's Silence

Prosecutor may not comment on defendant's silence after receiving Miranda warnings or at trial. But can rebut if defense claims they aren't allowed to speak. But if suspect remains silent before Miranda warnings, silence can be used against them.

Right to Bear Arms

Protects the right of individuals to keep handguns in their homes for self-defense.

Statutory Special Warranty Deed

Provided for by statute in many states, the deed contains two promises that grantor makes ONLY on behalf of himself. (NOTE: Grantor makes NO representations on behalf of his predecessors in interest.) -- Promises: 1. Grantor promises that he has not conveyed this estate to anyone other than grantee. 2. Grantor promises that the estate is free from encumbrances made BY the grantor.

Uniform Statutory Rule Against Perpetuities

Provides alternative 90-year vesting period.

Spendthrift Provision to Trust

Provision in trust that provides that the beneficiary cannot transfer their interest in the trust, and that creditors cannot attach to property held in trust.

Elective Share

Provision that gives a surviving spouse a share of most of the wealth of the decedent if the deceased spouse was the primary earner.

Scope of Easement

Set by the terms of the grantor conditions that created it. No unilateral expansion.

Supplemental Pleadings

Set forth things that happened after the pleading was filed. No right to file a supplemental pleading, must make a motion.

Express Trusts

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

Shareholder's Right of Inspection

Shareholder's right to review corporation's books and records on written demand. If you are looking for something non-controversial, you don't have to state a purpose, just make a written demand. if you want more controversial things, the demand must state a proper purpose.

Who hires and fires directors of a corporation?

Shareholders

Fiduciary Duty in Close Corporations

Shareholders in close corporations owe a fiduciary duty of utmost good faith to other shareholders

Merger and inchoate offenses

Solicitation and attempt merge into the completed crime. Conspiracy doesn't merge into the completed crime.

Waivable Defenses under Rule 12(b)

Some defenses will be waived if they are not in your first Rule 12 response. Lack of personal jurisdiction, improper venue, improper process, improper service of process

Must a trust be in writing?

Some states allow oral trusts of personal property under specified circumstances. If a trustee starts acting like a trustee, then they'll consider that as part performance and trustee will be estopped from denying the existence of the trust

Protections of the Homestead after decedent's death

Some states protect it from creditors, some states give surviving spouse and minor children the right to live in the homestead even if they received no rights to the homestead under the will

Corporation by Estoppel

Someone who treats a business as a corporation may be estopped from denying that it is a corporation. Applies only in contract (not tort) cases

Adoption by Estoppel/Equitable Adoption

Someone who wasn't legally adopted can be treated like an adopted child under intestate. If there is a sufficient relationship or unperformed agreement to adopt. Often applied to step-children

Unreliable Ear Doctrine

Speaker assumes the risk that the other person consents to government monitoring or is an informer.

Specific Performance in Sales of Goods

Specific performance available for breach of sale of goods contract if: the goods are unique or buyer can't go out and buy these goods anywhere else (art, antiques, custom-made goods)

Incitement

Speech can be censored as incitement if it is (1) intended to produce imminent lawless action and (2) likely to produce such action.

What is speech?

Speech includes words, symbols, and expressive conduct. Expressive conduct is any kind of conduct that is either inherently expressive, or conduct that is intended to convey a message and reasonably likely to be perceived as conveying a message.

Obscenity

Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person: Appeals to the prurient interest in sex, using a contemporary community standard, is patently offensive under contemporary community standards, and lacks serious value using a national, reasonable person standard

Slander

Spoken/oral defamation. If it is slander other than slander per se, must offer proof of economic harm

Which state has the jurisdiction to issue the initial award of child custody?

The child's home state (state where child has lived with parent for at least 6 consecutive months) or a state that was the child's home state within the last six months, and the child is absent from that state, but a parent continues to live in the state. If the child doesn't have a home state under these rules, case can be brought where the child has a significant connection and there is evidence of the child's well-being in the state.

Limitation of Remedies

The contract may limit the number of remedies available to the non-breaching party as long as the limitation isn't unconscionable.

Debt securities

The corporation borrows money and agrees to repay it with interest (usually called bonds). The person holding a debt security is a creditor of a corporation, not an owner.

When is a foreign corporation transacting business in another state?

The corporation has a regular course of intrastate business activity in the other state

Who is liable for corporate debts?

The corporation itself

What if a necessary absentee to a case cannot be joined in the case?

The court must decide whether to proceed with the case without the absentee or whether to dismiss the case. The court considers whether there is an alternative forum available, actual harm to absentee is likely, court can shape relief to avoid any harm

Impeachment of a hearsay declarant

The credibility of a hearsay declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness.

Larceny by Trick

The crime of larceny where the owner of the property is tricked into giving possession of personal property, but not title to the property, to the offender.

Impeachment by contradiction

The cross-examiner, while questioning the witness, can try to make the witness admit they lied or were mistaken about some fact that they testified to during direct examination. Extrinsic evidence may be used to prove the contradictory fact unless the fact is collateral

Is there a taking?

The crucial issue is whether government action is a taking or merely a regulation. A taking will be found if there is: A confiscation of a person's property or a permanent or regular physical occupation of a person's property by the government

MPC Test for Insanity

The defendant is entitled to acquittal if the defendant had a mental disease or defect and, as a result, lacked the substantial capacity to either appreciate the criminality of their conduct or conform their conduct to the law.

Factual Cause

The defendant's conduct actually caused the injury (link between breach & harm)

Entrapment Defense

The defense that the individual was induced by the police to commit the criminal act. Must prove (1) criminal design originated with law enforcement and (2) the defendant is not predisposed to commit the crime.

Bilateral Contract

The exchange of a promise for a promise

President's Power as Chief Executive

The express power and duty to faithfully execute the laws.

Well-Pleaded Complaint Rule

The federal question must be integral to the plaintiff's complaint. Ask is the plaintiff enforcing a federal right

Agency

The fiduciary relationship which results from the manifestation of consent from one person to another that the other shall act on his behalf and subject to his control and consent by the other so to act

Admissibility of Plea Discussions

The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions: -offers to plead guilty -withdrawn guilty pleas -Actual pleas of nolo contendere -Statements of fact made during any of the above plea discussions

When can the government regulate speech in limited public forums and nonpublic forums?

The government can regulate speech in such forums to reserve the forum for its intended use. in such locations, regulations are valid if they are: viewpoint neutral and reasonably related to a legitimate government purpose.

Loyalty Oaths for Public Employees

The government can require employees to take loyalty oaths, as long as the oaths aren't overbroad or vague

Financing Abortions

The government has no obligation to pay for abortions

Liabilities of newly admitted partners

To admit a new partner, all partners must agree. Newly admitted partner isn't personally liable for partnership obligations that arose before he was admitted.

Contingent Remainder

The taker of the remainder is either unascertainable or subject to a condition precedent. "To A for life, then to B's first child" (when B doesn't yet have a child).

What type of hearing is necessary to satisfy procedural due process?

The type and extent of the hearing are determined by a balancing test that weighs: The importance of the interest to the individual and the value of specific procedural safeguards to that interest against the government interest in fiscal and administrative efficiency. Typically the claimant should be given a pre-deprivation hearing, unless that would be impracticable.

Common Law Rape

The unlawful carnal knowledge by a man who is not her husband without effective consent

When is a warning adequate to stave off an information defect case?

The warning must be prominent (not on page seven of the instruction manual), comprehensible, provide information about mitigating the risk

Definition of Original for the Best Evidence Rule

The writing itself or any counterpart that is intended by the person executing it to have the same effect as an original. Includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information

Public Records Exception

The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.

Citizenship of Natural Persons

Their domicile (everyone only has one).

What if an essential person to a contract dies or become incapacitated?

Then the party is excused of performance.

What duty does a property owner owe an invitee?

There is a duty if the hazardous condition is (1) concealed from invitee; and (2) property owner knew about in advance or could've discovered through reasonable inspection.

When can the death penalty be imposed?

There must be a statutory scheme that gives the jury reasonable discretion, full information, and guidance. Cannot execute prisoner who is insane at the time of execution, can't give death penalty to minors or those who are intellectually disabled.

Can statements obtained in violation of the sixth amendment right to counsel be used at trial?

They can't be used in the prosecution's case in chief, but they can be used to impeach the defendant's trial testimony.

Authentication of photographs and videos

They must be identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. If a photograph or video is taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera.

Protections of non-marital children

They receive constitutional protections (intermediate scrutiny)

Why Plaintiffs Seek Recognition in other states

They want to access enforcement mechanisms in that state (D's assets are in recognizing states)

Discretionary Powers of Trustees

Things that the trust agreement allows a trustee to do, but that they don't have to do. Must make these decisions in good faith. Trustee can be held liable if the decision reflects an abuse of discretion

Mandatory Powers of Trustees

Things that the trust agreement mandate that a trustee do

Amendment to the pleadings to change a defendant after statute of limitations has expired

This amendment will relate back if the amendment concerns the same conduct, transaction or occurrence, the defendant had knowledge of the case so he won't be prejudiced by the amendment, and the defendant knew or should have known that the plaintiff made a mistake (the knowledge must have come within 90 days of filing the complaint).

Can a person who has been adjudicated incompetent able to make a will?

This raises a presumption of incapacity, but it is a rebuttable one.

When would a nonparty be required to join a case?

Three tests: Can complete relief be accorded among existing parties? Will absentee's interest be harmed if she isn't joined? OR Will defendant be subject to multiple or inconsistent liability?

Escrow Period

Time between the signing of the land contract and closing.

Refreshing Recollection

To use a document, exhibit or previous testimony in order to help a witness recall something when the witness has responded to a question that they can't remember. Usually can't read from the writing while testifying. Whenever a witness has used a writing to refresh their memory while on the stand, an adverse party is entitled to: (1) have the writing produced at trial; (2) cross-examine the witness about the writing; and (3) introduce portions of the writing relating to the witness's testimony into evidence

Affirmative Defenses to a Strict Liability Products Case

Traditional rule is knowingly encountering dangerous condition bars recovery. Comparative responsibility rule lets jury assign percentages based on the respective responsibility of the two litigants, then we reduce the plaintiff's recovery.

Assignment of Leasehold

Transfer of entire remaining term of lease. Assignee is in privity of estate with the landlord and both parties are liable on promises that run with the land. Original tenant in privity of contract, but not estate, with landlord. Original tenant will remain liable for original lease obligations if assignee doesn't uphold obligations.

Sublease

Transfer of part of the remaining term of a lease. Sublessor has no privity (estate or contract) with landlord. Relationship between original lessor and landlord remains intact. Lessor and sublessor are responsible to each other.

Conveyancing

Transferring of property to another. Two step process. Step 1: Contract (conveys equitable title). Step 2: Closing (deed passes legal title)

Transferability of Easement Appurtenant

Transfers automatically with the dominant tenement, regardless if it is mentioned in transference. Transfers with the servient tenement UNLESS the new owner is a bona fide purchaser without notice of easement.

What duty does a property owner owe a known or anticipated trespasser?

Trespasser is anticipated if there is a known pattern of trespassing in the past. There is a duty to protect from hazards on the property that (1) are an artificial condition on the land, (2) condition is highly dangerous, (3) condition is concealed from the trespasser, (4) condition is known by possessor.

How does a trust operate?

Trustee invests and manages the property following the legal duties that state law imposes and the settlor's instructions in the trust instrument. Can make payments to or for beneficiary as provided for in the trust agreement. Trust ends as provided in the trust agreement & trustee distributes the remaining property to beneficiary

Discretionary Trusts

Trustee is given discretion whether to apply or withhold payments of income or principal or both to beneficiary

Liability of a Trustee

Trustee is liable for damages caused by his breach of a duty If the trustee uses trust assets to buy property that increases in value - Must return BOTH trust property AND increased value If the trustee breaches duty of care in investing - Must personally repay the trust for its losses Breach causing depreciation in value of trust property -Trustee liable for the depreciation

Trustee's standard of care when investing trust property

Trustee must invest in the same manner as a prudent investor unless the trust instrument has somehow changed the default standard. But if trustee has higher skills (professional investor), you are bound to exercise the higher skills that you have. Look at the investments as a whole & not at each individual investment. Includes taking a reasonable amount of risk in investing & investing in many different things.

If the trust ends, what happens?

Trustee retains powers for a reasonable period of time to wind up trust business. "Reasonable period" depends on what is in the trust. Then must distribute the property to the remainder beneficiaries in a timely fashion.

Implied Trustee Powers

Trustees have powers that are necessary or appropriate to carry out the terms of the trust. Ex: power to sell trust property, incur reasonable expenses, hire an agent, lease property, mortgage trust property.

Purpose Trusts

Trusts set up not to benefit a charitable purpose or a person, but some other purpose (most common is a pet trust)

Unascertainable cause

Two acts, only one of which causes injury, but it is unknown which one actually caused the injury. Unascertainable cause shifts burden of proof to defendants, must show that they weren't the cause of the injury. If neither can prove that it wasn't them who caused the injury, they are both held jointly and severally liable.

Consolidation

Two corporations become one new corporation

When are two crimes not the same offense?

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not. Attachment of jeopardy for greater offense bars retrial for lesser included offense. Attachment of jeopardy for lesser included offense bars retrial for greater offense.

What happens if a partner dissociates from the partnership?

Two options -Partnership is dissolved and the business must be wound up and liquidated -Partnership will continue its business and the dissociated partner will become entitled to a buyout of his partnership interest

Assignment

Two parties contract. One party (assignor) assigns rights to third party (assignee). Assignee can enforce rights against party who owes duty (obligor)

Combination General and Special Verdict

Verdict where jury decides who wins and what relief, but also receive written questions to answer from the judge.

Vested Remainder Subject to Open

Vested remainder created in a class of takers. at least one must already be qualified to take.

Peremptory Challenges

Voir dire challenges to exclude potential jurors from serving on the jury without any supporting reason or cause. Generally limited to three.

Confessions Must be Voluntary

Voluntariness determined by the totality of the circumstances. Requires some compulsion on behalf of the police, mental illness won't make confession involuntary. Harmless error test applies: conviction need not be overturned due to an involuntary conviction if there is otherwise overwhelming evidence of guilt.

Waiver of Condition

Voluntary giving up of condition's protection. Must be done by the person the condition protects.

Fundamental Corporate Change: Dissolution

Voluntary requires board action & shareholder approval (like everything else) Involuntary dissolution is by court order. Shareholders can petition for this if (1) director abuse, (2) waste of assets, (3) misconduct, (4) director deadlock that harms the corporation, or (5) shareholders failed at consecutive annual meetings to fill a board vacancy. Creditor can petition for involuntary dissolution because the corporation is insolvent and the creditor has an unsatisfied judgment or the corporation admits the debt in writing

Partition of a Joint Tenancy

Voluntary: amicable, nonlitigious end Judicial: (two kinds) -In kind: physical division -Forced sale: division of proceeds

How do shareholders vote?

Vote on: 1. to elect officers 2. to remove directors 3. on fundamental corporate changes 4. other things if the board asks for a shareholder vote e.g. amend bylaws Need quorum (by number of shares, not number of shareholders). Need majority of the outstanding shares.

Does the burden of a covenant run with the land?

WITHN must be met for the burden to run Writing: Original promise needed to be in writing Intent: Need a showing of intent that the parties intended the burden to run Touch & concern: Promise must be affecting the parties in their legal relations as landowners Horizontal & vertical privity: Privity between original burdenee & burdener. Privity between seller and owner Notice: New buyer with burden needed to have notice of the covenant when she took

How to create an equitable servitude

WITNES W: Writing - original promise in writing I: Intent - parties intended the promise to bind successors T: Touch and concern - promise affects the parties as landowners N: Notice - successors of burdened land had notice of the promise ES: Equitable Servitude NOTE: privity is not required to bind successors

Particularity of Warrant

Warrant must describe with particularity the place to be searched and the items to be seized.

Technological Searches

Warrantless breath test is permitted but not a blood test. The physical attributes of a cell phone may be searched but not data.

Special Warranty Deed

Warrants against all defects in title (only for grantor themselves). Assumes no responsibility whatsoever for any transgressions committed by predecessors in interest.

Surface Water

Water above the surface of the land, including lakes, rivers, streams, ponds, floodwater, and runoff.

Prior Appropriation Doctrine

Water belongs to the state but the right to divert or use the water can be acquired through actual use (first-in-time, first-in-right). Right can be acquired by an individual whether or not she is a riparian owner.

Fraud in the inducement (dead law)

Way to contest a will. Contents of the will were caused because of a deception with regard to an extrinsic fact and the will was made based upon the erroneous fact.

Who votes in a corporation?

We assume each outstanding stock gets one vote. You must be the record shareholder of the outstanding stock as of the record date to vote.

Commingling (family law)

When determining what property is marital and what is separate, separate property can become marital if it is inextricably intertwined (think bank account)

Statute of Limitations issues with amended pleadings

We want to amend a pleading to join a claim that wasn't originally asserted, but the statute of limitations for the new claim has run. Allowed if the amended pleading relates back to the original complaint. It relates back if it concerns the same conduct, transaction, or occurrence as the original pleading. The amended pleading is treated as if filed on the date that the original pleading was filed.

What happens if the board breaches a fiduciary duty?

Well a director is presumed to concur with board action unless dissent/abstention is noted in writing in the corporation records. Thus, board action that breaches duty is imputed to all directors that don't meet this standard.

Abatement

What gifts fail when the estate property is inadequate to satisfy all testamentary gifts and debts? Most states have a standard hierarchy. Property that would pass by partial intestacy goes first, then residual gifts, then general gifts, then demonstrative gifts, then specific gifts.

Result of Failure to give notice about a shareholder meeting

Whatever action was taken at the meeting is void or voidable, unless those who weren't sent notice waive the notice defect.

What if notice of a special meeting of a board of directors isn't provided?

Whatever happened at that meeting is voidable unless the directors who weren't notified waive the notice defect either (1) in writing or (2) by attending the meeting without objecting at the outset of the meeting

When is a liquidated damages clause enforceable?

When (i) damages are difficult to ascertain at the time of the making of the contract, and (ii) the damages are a reasonable forecast of compensatory damages.

Fundamental Corporate Change: Conversion

When a corporation converts into another business entity. Need board decision, notice to shareholders, shareholder approval, then deliver document to the secretary of state.

Contribution

When a defendant who was held joint and severally liable at trial seeks compensation from co-defendants. Defendants have to chip in based on the percentages that the jury assigns. But if any defendant is insolvent, defendant originally held liable is out of luck as to that money.

Surrender

When a tenant shows by words or conduct that she wants to give up the lease.

Decanting (trusts)

When a trustee divides a trust into two separate trusts. Usually done for tax purposes.

Going into hotchpot

When an heir apparent gets an advancement, once decedent has passed, we compute the shares as if the advancement is still in the estate, and then distribute the property taking into account the amount an heir has already received.

When can a corporation move to dismiss a derivative suit?

When an independent investigation concludes the suit isn't in the corporation's best interest. Independent directors or a court appointed panel must make this investigation.

Implied conditional revocation

When decedent revokes a prior will and makes a new will, the revocation of the old will is conditioned on the validity of the new will. Thus, if the new will is determined invalid, the old will's revocation isn't valid. When determining whether to apply this doctrine, look to testator's intent. Would testator have preferred the first will over intestacy? Look at the similarity of provisions.

Income Shares Model (child support)

When deciding how much child support should be paid, we look at the number of children and the income of the parents to determine the baseline level of support. Then a court can add more money for health insurance, extraordinary medical needs. The court can also deviate from the model as laid out in the guidelines.

Interlocutory Appeal

an appeal that occurs before the lower/trial court's ruling on the entire case.

Interrogatories

Written questions to be answered in writing under oath. Can only be sent to parties. Limited to 25 (unless court order or stipulation). Must be responded to within 30 days of service. Must be answered with information reasonably available to answerer.

Requests for Admission

Written request asking opponent to admit facts. Must respond within 30 days. Response: deny, deny knowledge, object, or admit. Reasonable inquiry must be made before answering. If party fails to deny a proper request, that is deemed admitted.

Request to Produce

Written requests by one party to another seeking formal permission to obtain copies of records, documents, and other tangible things for inspection, copying, and testing. Must be produced in the form the requesting party specifies unless the responding party objects. Must respond within 30 days of service.

Ouster

Wrongful exclusion of co-tenant from part/whole. Actionable wrong.

Can directors of a corporation set their own compensation?

Yes, but it must be reasonable and in good faith. If it is excessive, they're wasting corporate assets.

Can the corporation make a loan to a director?

Yes, if it is reasonably expected to benefit the corporation.

Can the court terminate a trust?

Yes, if the trust purposes have been accomplished, if they have become illegal or impossible to perform, or there were circumstances impossible to guess

Can a corporation give employees options to buy stock as payment for their services?

Yes.

How do you form a limited partnership?

You must file a certificate of limited partnership with the Secretary of State. Requires minimal information, look to the partnership agreement to learn how the partnership will operate.

unconscionable contract

a contract that courts refuse to enforce in part or at all because it is so oppressive or manifestly unfair as to be unjust. Measure unjustness at the time of formation

Injunctive Relief

a court order forcing a defendant to do something or refrain from doing something

Temporary restraining order

a court order in equity to restrain a particular action while the court considers a request to issue an injunction. Preserves status quo until preliminary injunction. If granted, applicant must post a bond to cover other side's costs/damages if it turns out that that restraint was wrongful. Cannot exceed 28 days (14 days plus 14-day extension). Treated like a preliminary injunction after 28 days.

Misdemeanors

a criminal offense, less serious than a felony, punishable by a prison sentence of one year or less

No-Fault divorce

a divorce granted without regard to marital fault. Means neither party has to prove the other party is guilty of misconduct. Allowed upon proof of irreconcilable differences (generally requires agreement of spouses), living separate and apart for specified time, incompatibility

Best interest of the child

a doctrine used to determine custody by examining any factors that might affect the child's best interest. Sample Factors: (1) parents' wishes, (2) preference of the child, (3) child's relationship with parents, siblings, and others involved with parents, (4) child's adjustment to home, school and community, (5) parties' mental and physical health, (6) who is already the primary caregiver?

Agency Theory of Felony Murder

a felon is liable for a murder committed by a co-felon or agent, not just any death. Majority view.

How does a corporation adopt a contract?

a. Express B action adopting it b. Implied - if corp accepts a benefit of the K

Special Standard of Care for Children

a. Under the age of 5, no duty of care and can't be held liable for intentional torts b. Older children are held to the standard of care of a child of similar age, education, experience, and intelligence acting in similar circumstances. Subjective and pro-defendant.

Land Contract

agreement under which buyer pays in installments and waits for deed. Conveys equitable title and only lives until closing. Must be in writing to be enforceable & signed by party against whom enforcement is sought.

Issue Preclusion

aka collateral estoppel. Bars re-litigation of issues, even in cases not involving the same parties.

Quasi-Easement

an access route used by the landowner when the land was not yet divided

Special Shareholder Meeting

can be called by the board, the president, or the owners of at least 10% of the outstanding shares, or anybody else as authorized in bylaws. (But remember shareholders don't get to remove officers, so shareholders can't hold a meeting to do that).

Suspect Classifications

classifications of people on the basis of their race, alienage, or national origin

Standard of Review for Questions of Fact Decided by Judge

clearly erroneous: there is support in the record for the decision

Restitution Damages

compensation determined by the amount of benefit unjustly received by the breaching party

Interstate Compact Clause

concerns agreements between states. If agreement increases the states' power at the expense of federal power, congressional approval is required.

Reliance Damages

contract damages placing the injured party in as good a position as she would have been in had the contract not been made. Available if expectation damages are uncertain.

closely held corporation

corporation that issues stock to only a few people, often family members. Small number of shareholders, stock isn't publicly traded. Shareholders can manage directly if a shareholder management agreement is created. Shareholder management agreement must be in the articles or done by unanimous written shareholder agreement.

Felonies

crimes punishable by death or confinement in the state's prison for more than one year

Joint Custody

custody agreement in which both parents retain custody of the child following divorce. Many iterations, encouraged in most jurisdictions if the parties agree. If the parties are openly hostile, unable to communicate, then courts won't award joint custody.

Standard of Review for Questions of Law

de novo: no deference given to trial judge

Quitclaim Deed

deed that conveys an individual's property rights to another but has none of the covenants of the warranty deed. Doesn't even promise that they have good title to convey.

Motion to Dismiss for failure to state a claim

defendant argues even if it admits everything in the complaint is factually true, it is not liable. Court looks only to allegation of facts in complaint, do these facts (if true) state a plausible claim?

Child Custody

determines who has legal and physical custody of a child. Biggest consideration is the best interest of the child.

Per capita at each generation

directs equal shares to each living member of the same generation

Citizenship of Class Actions

diversity is determined on the basis of the citizenship of the named members of the class who are suing

equitable division of marital property

each spouse takes his separate property and the court divides the property acquired during the marriage. Property isn't necessarily divided equally, but equitably. First the court will classify each asset as marital property or separate property. Then the court will make an equitable division of the marital estate, no matter how the property is titled.

Breaking and entering

forceful, unlawful entry into a building or conveyance. It isn't a breaking if someone walks into a wide open door or window. Constructive breaking (breaking by fraud or threat) also constitutes breaking and entering.

Devise

gift of real property by will

Residual Gift

gift to a beneficiary that is left over in the estate after the debts and the gifts to other beneficiaries are paid

Intervivos Gift

gifts made by a person during their lifetime. Will not pass under a will or through intestacy

Property Owner's Right to Exclude

gives the property owner the legal right to keep others off the property and to prosecute trespassers.

use and derivative use immunity

guarantees that witness's testimony and evidence located because of his testimony won't be used against the witness.

Exceptions to no affirmative duty to act

• Preexisting relationship will trigger duty to act reasonably under the circumstances o Relationship with formal legal labels: business owner and invitee, inn keeper-guest, common carrier-passenger, employer-employee • Defendant caused the peril will trigger a duty to act reasonably under the circumstances • Chooses to rescue even though they don't have to. One who gratuitously acts for the benefit of another is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance o One who acts for the benefit of another has a duty to continue the assistance • Actual or apparent ability to control a 3rd party AND knows or should know of the need to do so

Right of Entry

A future interest associated with the fee simple subject to a condition subsequent in which the grantor may elect to end the interest after the grantee breaches a condition under which it was granted.

Reversion

A future interest in the grantor, which occurs whenever the owner of real estate conveys an estate of lesser duration than the owner had before the conveyance.

What is an Offer?

A manifestation of an intention to be bound.

Implied Contract

Contract formed by conduct

What is a revocation?

The offeror's retraction of an offer

Exceptions to Sovereign Immunity

1) Consent to suit, 2) Actions against local governments, 3) actions by the United States or other states, 4) proceedings in federal bx courts, 5) certain actions against state officers, 6) Congress removes a state's immunity

Political Questions

1) Constitutionally committed to another branch of government OR 2) inherently incapable of judicial resolution

Third Party Standing

1) It is difficult for the third party to assert their own rights, or 2) a close relationship exists between the claimant and the third party

Exceptions to the Mailbox Rule

1) Offer states otherwise 2) Option Contracts 3) Offeree sends a rejection first, then sends an acceptance. (in this case, whichever arrives first is the result)

Organizational Standing

1) There is an injury in fact to the members, 2) the members' injury is related to the organization's purpose AND 3) individual member participation in the lawsuit is not required

Lack of Capacity to Contract

1. Minors (under 18), 2. Mental incompetency (cannot understand the agreement) 3. Intoxicated persons (if the other party has reason to know) *They have the right to disaffirm

Executory Interests

A future interest created in a third party that takes effect by either cutting short some interest in another person ("shifting") or in the grantor or his heirs ("springing").

Shifting Executory Interest

A future interest that follows a defeasible fee, cuts short someone other than grantor. "To A, but if B returns from Canada, then to B."

Heir apparent

A living person cannot have heirs, only prospective heirs. Means that if A holds in fee simple, A's heirs have nothing because there are not heirs. Have no rights in the property!

Profit

A nonpossessory interest in land that entitles the holder to enter onto the servient tenement and take soil, minerals, and substances from the land (fish, game, silver, gravel etc.)

Vested remainder subject to complete defeasance

A remainder that is vested but subject to a condition subsequent. If the condition subsequent materializes, the remainderman is subject to complete divestment.

Discriminatory Restraint

A restraint based on race, religion, ethnicity (ex: can't sell to black people). Automatically void.

Mirror Image Rule

Acceptance must mirror the terms of the offer exactly (UNDER CL)

Material Alteration

Acceptance that changes money, liability, or remedy for breach in the contract.

Life Estate

An interest in real or personal property that is limited in duration to the lifetime of its owner or some other designated person or persons. "To A for life." Holder of a life estate is a life tenant

Quasi-Contract

Another name for a restitution remedy that courts use when applying contract law yields an unjust result.

What are goods under contract law?

Anything movable when identified to the contract

Absolute Restraints on Alienation

Are void - it is an absolute ban on the power to sell or transfer that is not linked to a reasonable time limited purpose - condition is void. If the limitation is a reasonable - time limited purpose it's okay.

Express Contract

Contract formed by Words (oral or written)

Duress under Contract Law

Contract is void when a party's assent to a contract is induced by an improper threat by the other party that leaves the victim no reasonable alternative.

When can a life tenant commit ameliorative waste?

If the market value for the future interest holders isn't diminished AND EITHER (1) the remaindermen don't object or (2) a substantial and permanent change in the neighborhood conditions has deprived the property in its current state of any reasonable productivity or usefulness.

When can a state discriminate against nonresidents?

If the state law doesn't burden an important commercial activity or fundamental right OR the state law is necessary to achieve an important government purpose and there are no less restrictive means available

When is a communication an offer?

It must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. Must contain a promise or commitment to enter into a contract, not just an invitation to begin negotiations. Must be an objective intent, not subjective intent.

Who is considered a merchant under Article II?

One who regularly deals in goods of kind sold OR holds themselves out as having special knowledge or skills as to practices or goods involved.

What offers can't be revoked?

Option contract, merchant firm offer rule (under Article II), foreseeable reliance, beginning performance under a unilateral contract.

Womb Rule

Used to determine when a class closes for a vested remainder subject to open. If child is in womb at the time the class closes, the child will get to join in the gift

When are advertisements considered offers?

When the advertisement contains a promise, the terms are certain and definite, and the offeree is clearly identified.

When is an offer revoked indirectly?

When the offeree receives correct information, from a reliable source, of the offeror's acts indicating revocation. Revocations are effective upon receipt.

Economic Duress under Contract Law

Withholding something someone wants or needs constitutes this if: (1) the party threatens to commit a wrongful act that would seriously threaten the other contracting party's property or finances; and (2) there are no adequate means available to prevent the threatened loss.

Does silence constitute acceptance?

no - common law - silence on the part of the offeree is not acceptance (because we don't force people to speak) 2 exceptions 1. "if you don't hear from me by 5 oclock, consider it as accepted" the offeror can't create these terms, but the offeree can 2. the offeror and the offeree have a series of past transactions where silence always constituted acceptance (like in exception 1) -unless the course of dealing is communicated as broken, that same way of doing things can be expected

Promissory Restraint

provides that the grantee promises not to transfer his interest, and if he does it breaks some kind of covenant or promise. These are valid if reasonable and limited in time.