MBE

a. *Gaps* in the agreement that leave certain issues unaddressed b. *Ambiguities* in the agreement concerning issues that the parties tried to address.

Parties to a contract ordinarily reach explicit and unambiguous agreements on the essential issues of the contract, such as quantity and price. However, there are two problems that arise.

Each co-tenant has the right to seek partition of the property. Voluntary partition is done by exchange of deeds or selling the property and dividing the proceeds. Involuntary partition is the result of a partition action filed by one or more co-tenants in court.

Partition of Co-Tenancy

A minor's contract for necessaries is voidable, but the merchant has a quasi-contract right to recover the reasonable value of the goods or services. Necessaries = food, clothing, shelter, and medical care Education / Cars? - Courts are split

Minor's Contract for Necessaries

. An impleaded defendant will be subject to the personal jurisdiction of a federal court if, in addition to any other ground for personal jurisdiction, the impleaded defendant is served with process within 100 miles of the courthouse where the suit is pending. .

The Relationship Between Joinder and SMJ, PJ, and Venue Personal Jurisdiction Bulge Rule

If a party: a) withholds key evidence during discovery, b) bribes a witness, or c) makes false statements to the court or other parties, a party subject to an adverse judgment may seek relief from that judgment.

Motion for Relief From Judgment - Grounds Fraud, Misrepresentation, or Misconduct by a Party

If a party has satisfied the judgment entered against it, the party may seek to have the judgment discharged so that it is no longer under the supervision of the court. This type of relief is most often sought in suits involving injunctive relief.

Motion for Relief From Judgment - Grounds Judgment Has Been Satisfied

If the judgment entered is void because the court lacked subject matter jurisdiction or personal jurisdiction, a party subject to the judgment may seek relief from the judgment.

Motion for Relief From Judgment - Grounds Judgment Is Void

This ground is often used by litigants against whom a default judgment has been entered, but it need not be confined to that context.

Motion for Relief From Judgment - Grounds Mistake, Inadvertence, or Excusable Neglect

A plaintiff is asserting either: i) A warning is inadequate Does the warning reasonably inform the foreseeable readers of significant risks? Consider language, placement, and size of font. ii) Failure to warn Manufacturer has to warn about risks of which it knows or should have known. Consider gravity and probability of harm.

Warning Defects

Similar to malicious prosecution - only involving a civil prosecution.

Wrongful Institution of Civil Proceedings

Once an appellate court can review a review, it must review what standard of review to apply to the district court's allegedly erroneous decision. This depends on what the issue being appealed is --- Questions of Law Questions of Fact Inherently Discretionary Questions

Appeals - Appellate Review Standard of Review

Appellate courts may affirm an erroneous lower court decision if the error did not affect the result.

Appeals - Appellate Review Standard of Review Harmless Error

An appellant cannot seek relief on appeal if she passed up an opportunity to challenge the decision at the time the lower court made it. By failing to challenge it at the time, the appellant waived her right to appeal that issue.

Appeals - Appellate Review Standard of Review Waiver

Under FRE 901(b)(9), evidence regarding the accuracy of the process or system is required; may testify to describe how a scientific or technical method produces a specific result and may show how such a process is accurate. Expert may authenticate a scientific device under Daubert (or Frye)

Authentication Experts

If an opponent fails to comply with discovery requests, the party must first attempt in good faith to confer with the person resisting discovery to see if judicial invention may be avoided. If this attempt fails, the party may file a motion to compel discovery in compliance with their discovery request. If the court grants the motion, the opponent must pay the legal fees and expenses associated with making the motion. If the court denies the motion, the opponent may be entitled to fees if the motion was not substantially justified.

Discovery - Motion to Compel

Each party must provide to all other parties the name and contact information of any witness that a party may use to support a claim or defense. If the witness will only be used for the purposes of impeachment, the party need not disclose that witness.

Discovery Initial Disclosures Witnesses

Even if the information sought is within the scope of discovery defined above, the requesting party may only obtain the information if she adheres to the specified methods of discovery.

Discovery Methods (a.k.a. How to Get Something That You're Allowed to Get)

At least 30 days before trial, each party must provide to all other parties --- (a) a list of the witnesses she expects to call at trial, (b) the witnesses she may call if the need arises, (c) a list of witnesses whose testimony will be presented through a deposition or deposition transcript, and (d) a list of documents or physical evidence she expects to present.

Discovery Pretrial Disclosures

Even if information is relevant to a claim or defense, and not work product, it may still be protected from discovery if it is privileged. The most common privilege is the attorney-client privilege (which covers communications between an attorney and client for the purposes of obtaining or rendering legal advice). Many other privileges exist, however, including the marital privilege and state secrets privilege.

Discovery Privilege

Parties are permitted discovery into any matter that is relevant to any claim or defense. Information is relevant if it is likely to make any fact in dispute more or less likely to be true, regardless of whether the evidence would be admissible at trial

Discovery Relevance

Work product is undiscoverable. Work product is a document or other tangible object created by a party or party's attorney in anticipation of litigation. Common examples of work product include a post-incident description of events or records of communications with witnesses (including expert witnesses). Exception: Work product is still discoverable in two particular situations: (a) A party can always obtain a statement that it has made. Thus, if P, soon after a car accident, briefly speaks with D's attorney about the accident and the attorney takes notes on the conversation, P can obtain the notes even though they are otherwise work product. (b) A party can obtain work product for which it has a substantial need and can't otherwise obtain without substantial hardship. If a court orders disclosure of work product for this reason, it must make every effort to keep the author's litigation strategy or mental processes secret.

Discovery Work Product

Sanctions are warranted if, even after a motion to compel has been granted, a party refuses to permit discovery. Sanctions may include: (1) A court order declaring that the facts sought are established in favor of the requesting party, (2) A court order prohibiting the disobedient party from presenting certain claims or defenses, (3) A stay or dismissal of the entire action, or, (4) An order of contempt.

Discovery - Sanctions

a. "Want of Consideration": concerns the absence of a bargained-for exchange. (no contract formed) b. "Failure of consideration": concerns a party's failure to perform in accordance with his promise. (breach of the contract formed)

Distinguishing "Want of Consideration" from "Failure of Consideration"

A federal court sitting in diversity will apply an "Erie analysis" to determine which law to apply to which issue. Federal courts must apply state-substantive legal rules when adjudicating state law claims. 1. Apply the valid federal or Constitutional provision that is on point 2. If none on point, avoid unfairness or forum shopping.

Diversity Cases: Erie Analysis

Federal courts have subject matter jurisdiction over diversity claims. A diversity action is a claim: (1) between citizens of different states or between an American citizen and an alien (make sure diversity is complete) (2) for an amount over $75,000.

Diversity Jurisdiction (28 U.S.C. § 1332)

Complete diversity exists as long as NO plaintiff and defendant are citizens of the same state. Diagram this -- make a list of the citizenship of every plaintiff and then see whether any state is on both sides of the "v." EXCEPTION: In class actions where the class contains over 100 persons and the amount in controversy exceeds $5,000,000, diversity need not be complete. It need only be "minimal," meaning that federal jurisdiction exists if any single member of the class is diverse from any single defendant. We will touch upon this again later when we talk about class actions.

Diversity Must Be "Complete"

Abolished in a majority of jurisdictions. Also known as rule against remainders in grantor's heirs, the doctrine of worthier title arises where: (1) Grantee receives an estate less than fee simple (life estate or term of years, etc.) (2) Grantor's heirs must receive a remainder or executory interest; (3) Both interests are created with the same instrument; (4) Both interests are legal or equitable. Applies to inter vivos transfers only. It is worthier to take by descent (intestacy) than by devise (will). This happens when intent is unclear.

Doctrine of Worthier Title

Someone who had first-hand knowledge of the document, such as: (1) custodian: witness must be substantially familiar with the items (2) one who prepared the document/report (preparer of lab report) (3) eyewitness to the signing of the document (4) opinion by expert witness re: handwriting, fingerprints, shoe prints, tire tread marks, ballistics, etc. (5) by the jury: comparing samples

Documents may be authenticated or identified by:

When a promisee seeks a performance from the promisor in order to make a gift to that third party. This beneficiary is not privity of contract with the parties, but can still enforce the contract against the promisor.

Donee beneficiary

The estate that benefits from the easement You do not always have to have a dominant estate (i.e. easement in gross) EXAMPLE: If A owns a landlocked parcel of land and the only way to reach a public highway is to drive across B's property, A owns the dominant estate and B owns the servient estate.

Easements - Dominant estate:

The estate that is burdened by the easement You always must have a servient estate

Easements - Servient estate:

A. Intentional Misrepresentation (Fraud) B. Negligent Misrepresentation C. Interference with Contractual Relations D. Interference with Prospective Economic Advantage E. Injurious Falsehood (Trade Disparagement)

Economic Torts (e)

Satisfaction of the Statute of Frauds does not ensure a "win"; the aggrieved party must still go on to establish a valid contract and a breach thereof to succeed on his claim.

Effect of Satisfying the Statute of Frauds

Assignments can be made by either the tenant or the landlord, unless lease says otherwise.

Effect of Transfer of Interest—Assignment and Subletting Who can make assignments?

If the bill is presented to the President less than 10 days before the end of a legislation session, then the President can pocket veto it. This means President can not do anything about the bill and it will automatically die. This is very effective because Congress cannot override.

Executive Power Chief Executive Veto Power Pocket Veto:

The President is the chief executive and he has the following powers: (1) Enforcement of Laws (2) Appointment Power (3) Removal Power (4) Veto Power (5) Pardon Power (6) Executive Privilege

Executive Power Chief Executive (6 Powers Total)

(1) Criminal case: Not allowed by the prosecution. No adverse inference may be drawn from a party's failure to take the stand (2) Civil case: The opposing party can comment and so create a negative inference

Fifth Amendment Privilege Against Self-Incrimination Commenting on the Privilege

(1) Reputation or opinion: Rule 608(a) (2) Bad acts: Rule 608(b) (3) Felony convictions in general: Rule 609(a) (4) Specific convictions of crimes involving dishonesty or false statement: Rule 609(a)(2)

Methods of Impeachment Character: Four categories under Rules 608 and 609.

A witness's character for untruthfulness is ALWAYS material and may be attacked by:using reputation or opinion evidence Either party may call a witness in both civil and criminal cases.

Methods of Impeachment Evidence of Character and Conduct of Witness (Rule 608) Reputation and Opinion Evidence

Under the public duty doctrine, a government agency owes no duty for failing to provide an adequate response to an emergency. Exceptions: 1) There is a special relationship between the plaintiff and the agency . 2) The agency has increased the danger beyond what would otherwise exist.

Negligence Duty When the defendant is a governmental entity Public duty doctrine:

(1) Where the governmental entity is using judgment and allocating resources. (2) The courts will not find a duty.

Negligence Duty when the defendant is a governmental entity Discretionary activity

1. Duty - Does the law impose a legal obligation on the defendant toward the plaintiff? - act reasonably to all foreseeable plaintiffs 2.Standard of Care - Measure of the duty owed 3. Breach of Duty - Failure to meet the standard of care 4. Cause in Fact - Connects the defendant's breach to the plaintiff's injury 5. Proximate Cause - Are there still policy reasons to cut off liability even with the other elements established? 6. Damages - Plaintiff must prove damages to recover negligence 7. Defenses

Negligence Elements

A public nuisance is an unreasonable interference with a right common to the general pubic. Typically brought by a government actor such as an Attorney General. To recover damages in an individual action for a public nuisance one must have suffered harm of a kind different from that suffered by other members of the public.

Public Nuisance

(1) Police observations (2) Eyewitness reports (2) Flight from police in a high crime area (3) An informant's tip coupled with police investigation that corroborates the accuracy of the informant's predictions

Reasonable suspicion that crime is about to or has just occurred may be established by:

There is a right to marry but there are some restrictions that are allowed. Generally, if a state says someone can't get married at all, you get strict scrutiny . If a state regulates who you can marry (i.e. no cousin marriage), that does not get strict scrutiny.

Substantive Due Process Fundamental Rights— Privacy Marriage

if the government wants to regulate personal rights, then it has to meet the highest level of scrutiny, strict scrutiny.

Substantive Due Process Strict Scrutiny:

Intent is satisfied when defendant intentionally performs the physical act that interferes with plaintiff's chattel. Defendant is liable even though he did not intend or recognize the legal significance of his act. Mistake is not a defense to trespass to chattels.

Trespass to Chattels Intent

Trespass to land is an intentional act that causes a physical invasion of plaintiff's land, interfering with the plaintiff's possessory interest. Elements: (1) Intent (2) Entry (3) Plaintiff's land When a person is trespassing, they are liable for the full extent of their harm.

Trespass to Land

After process is served, the party sued must decide how to respond. The Federal Rules offer several options: a. Answer b. Admissions or Denials c. Defenses d. Motion for More Definite Statement e. Motion to Strike f. Motion to Dismiss

Types of Responses to a Complaint (6)

a. Fraudulent Misrepresentation b. Non-Fraudulent Misrepresentation 3. Defenses are equally applicable under common law and the UCC.

Types of misrepresentation

(a) vendor-purchase money mortgage - mortgage is issued to the seller of the land (b) third party-buyer borrows money to pay off purchase price and gives mortgage. Note: this has to be one continuous operation, there are not gaps in time for these occurrences.

Types of purchase-money mortgages

In rare cases, the method of warrant execution may render the police action unreasonable, it if shocks the *conscience*. Example: It is unreasonable to require the removal of a bullet from an individual suspected of robbery when the bullet is deeply embedded in the body, removal would damage the body, and the removal would require general anesthesia.

Warrant Execution

Expressly or by implication with a holdover tenant. Term is indefinite, because it is a self-renewing tenancy.

Periodic Tenancy Lease Creation

If a contract is for unlicensed goods or services, then the contract is voidable and may be rendered unenforceable by a public policy defense.

Unlicensed Goods or Services

Although Congress does not have any express constitutional power to investigate, the Necessary and Proper Clause permits Congress to conduct investigations incident to its legislative power. Congress's investigatory power is broad, and it may extend to any matter within its legitimate legislative sphere. It may do things necessary to facilitate an investigation. Congress cannot override any person's constitutional rights.

The Powers of Congress Investigatory Power

For a federal law to be constitutional: (a)Congress must have the power to pass the law; and (b) the law must not violate a constitutional right. For a state law to be constitutional: (a) the law must not violate a constitutional right. EXAM TIP: Watch out for an answer that says the federal police power or Congress' power to promote the general welfare. These powers do not exist unless discussing the District of Columbia or some other federal territory.

The Powers of Congress Legislative Power

Procedurally, Congress passes a bill with a majority in both houses. The President then signs the bill or vetoes it. If the bill is vetoed, Congress can override the veto if it gets a vote of 2/3 majority in each house.

The Powers of Congress Legislative Power Procedure

Substantively, Congress has three sources of power to legislate: (1) Enumerated powers (2) The Enabling Clauses of the 13th, 14th, and 15th Amendments (3) The Necessary and Proper Clause gives Congress

The Powers of Congress Legislative Power Sources of Power to Legislate

One merchant sends the other written confirmation of the agreement, and the other fails to object within the required time The written confirmation must be: 1. Enforceable against the sender (written and signed by sender with a quantity term contained within) 2. A confirmation of the contract 3. Sent within a reasonable time of the formation of the original agreement. 4. Based on a real agreement or discussion between the parties 5. Actually received by the other party. If the sender objects, they must send a written notice of objection within 10 days of receipt in order to keep his Statute of Frauds defense. A confirmation that never reaches the intended recipient's place of business would not be valid against the recipient, since the latter would have no "reason to know" its contents.

There are five ways to satisfy the UCC Statute of Frauds: (2) The second way to satisfy the UCC Statute of Frauds :Merchant's Confirmation (aka, "Speak Now or Forever Hold Your Peace")

A third-party beneficiary has no rights against the promisee in connection with the promised performance under the new contract. Instead, a third-party beneficiary will only have rights against the promisee based on *whether there is a prior obligation between the promisee and the third party beneficiary*

Third-Party's Rights against the Promisee

Initial Response (1) Process Actually Served: If D was actually served with process (regardless of the method), D has 21 days within which to respond. (2) Service of Process Waived: If D waived service of process, D has 60 days to respond. Secondary Response (1) Suppose that D responds to P's complaint by filing a motion for more definite statement, a motion to strike, or a motion to dismiss. What must D do if the motion is denied? D must file an answer within 14 days of the denial.

Timing of Responses to Complaint

(1) Damages (2) Restitutionary remedy of replevin (get back personal property of which one has been wrongfully dispossessed)

Trespass to Chattels Remedies

(1) Subsequent Agreements (2) Collateral Agreements (3) Attack on the Validity of the Written Agreement

When the Parol Evidence Rule Will Not Apply

Process must be served within: 90 days of filing the complaint. If the plaintiff fails to have process served within that time, the court must dismiss the suit without prejudice. However, If the plaintiff can show good cause why service was not completed within 90 days, the court must provide the plaintiff additional time for service.

When Must Process Be Served?

A determinable estate is created by durational language telling how long the person has the property. EXAMPLE: "A to B for so long as liquor is not served on the premises." "A to B while liquor is not served on the premises." "A to B until liquor is no longer served on the premises." A determinable estate terminates automatically on the happening of a named future event. The estate returns to the grantor, through possibility of reverter in the absence of a third party (this is hidden/implied in the estate ). (Common law presumption)

Fee Simple Determinable

Can be created by either conditional or durational language. Conditional will look like a Fee Simple to a Condition Subsequent Durational will look like a Fee Simple Determinable On the happening of the event that will terminate the fee estate the property passes to a third party -- this is the important difference. EXAMPLE: "A to B so long as B farms it during his lifetime and, if he does not, then to C." EXAMPLE: "A to B on condition that B gets married. If B dies without marrying, the property will pass to C."

Fee Simple Subject to Executory Interest

Public school children can be disciplined for speech if :the speech is potentially disruptive.

First Amendment Time, Place, Manner Regulation of Speech Public school children can be disciplined for speech if

a. Title = legal ownership, and implies possession. BUYING A CAR b. Possession = full dominion and control over the property, but does not require title. RENTING A CAR c. Custody = physical control of property in someone else's possession without full dominion over the property-the possessor places strict limits on permissible use of the property. (bailment) TEST DRIVING A CAR

Forms of control

A "final judgment" is a court order that resolves the entire case in favor of either the plaintiff or the defendant. A final judgment is valid only if the court had personal jurisdiction over the defendant. A final judgment is "on the merits" if it involved an inquiry into the merits of the plaintiff's claim and did not result in: (i) dismissal for lack of personal jurisdiction, (ii) dismissal for lack of subject matter jurisdiction, (iii) dismissal for lack of venue. A dismissal with prejudice is considered a dismissal on the merits.

Claim Preclusion Elements Valid Final Judgment on the Merits

A plaintiff is precluded from re-litigating a claim if: (a) The same parties are on the same side of the "v" (plaintiff now was plaintiff in prior litigation against same defendant); (b) The claim arises out of the same transaction or occurrence as the underlying prior suit; (c) The underlying prior suit results in a valid final judgment on the merits.

Claim Preclusion Elements (c)

Compulsory counterclaim ≠ Claim preclusion If a party fails to raise a compulsory counterclaim as a defendant, they may bring an action after the case because they have switched positioning from "defendant" to "plaintiff". However, collateral estoppel may still apply.

Claim Preclusion Relationship to compulsory counterclaim rule

Once an opponent presents sufficient evidence that a presumed fact is not true, the presumption disappears.

How to defeat a presumption

The aggrieved party may not be able to recover the full amount of expectation damages. a) Many courts would award cost of performance despite the disparity with market value on the view that expectation damages should be calculated on the basis of the value of performance to the injured party himself and not on its value to some hypothetical reasonable person or on some market.

Cost of performance greatly exceeds the market value of the performance

(1) Historically: Falsity was presumed once the plaintiff established the publication of a defamatory communication. In other words, truth was a substantial defense. The defendant had to prove that the communication was "substantially true." (2) Today: In all defamation cases, except possibly those where the plaintiff is a private plaintiff and the matter is of private concern, the plaintiff must prove falsity as part of her prima facie case.

Defamation Truth

Diversity is measured at the time the lawsuit is filed. Thus, even if a party moves to a different state after the lawsuit is filed, jurisdiction will not be affected. However, if a complaint is amended to add or dismiss a party, this can affect jurisdiction.

Diversity Timing

(1) Doctor-patient privilege: a statutory privilege - not common law - most states have a doctor-patient privilege (a) The Federal Rules never recognized a doctor-patient privilege (basic medical doctor). Where such a privilege exists, it must be created by state law. However, there is a federal psychotherapist-patient privilege that can be asserted through common law which governs federal courts.

Doctor-Patient and Psychotherapist-Patient Privilege

It violates due process for the prosecution to fail to disclose to the defense evidence that is both *favorable and material* *Favorable—the disclosure trigger:* (a) If defense makes a discovery request, any evidence that would tend to help the defense is favorable; (b) If defense fails to make a discovery request, only evidence that is clearly exculpatory is favorable. The prosecution is not required to disclose this information to a criminal defendant prior to plea bargaining or entering into a plea agreement with him.

Discovery

At the outset of a case, each party must provide to all other parties certain information. (1) Witnesses (2) Documents or Objects (3) Damages (4) Insurance Agreements

Discovery Initial Disclosures

Each party must provide to all other parties copies of an insurance agreement that may require an insurance company to pay all or part of a judgment.

Discovery Initial Disclosures Insurance Agreements

(a) Factor #1: language of the parties Words suggesting benevolence rather than self-interest, such as "gift," may indicate a gratuitous promise. (b) Factor #2: context In the commercial context, gratuitous promises are rare. More common in the family and charitable context. (c) Factor #3: benefit to the promisor Where the promisee's detriment creates no benefit to the promisor, it more likely indicates a condition to a gift rather than consideration.

Distinguishing a "Condition on a Gratuitous Promise" from "Consideration"

The amount in controversy must exceed $75,000 to get diversity jurisdiction. A court will defer to the plaintiff's allegation of her financial injury unless it appears "to a legal certainty" that such allegations are incorrect. Additionally, it is immaterial whether the plaintiff actually recovers over $75,000 in damages as long as an appropriate amount was pled in good faith at the outset.

Diversity - Amount in Controversy

Defendant acts with a conscious disregard of a high degree of probability that the emotional distress will follow.

Intentional Infliction of Emotional Distress Mental State - Recklessness

If a particular plaintiff brings multiple claims against a particular defendant, a court will aggregate the amount in controversy for each of those claims to determine whether a sufficient amount in controversy exists for diversity ($75,000). If the plaintiff brings multiple claims against multiple defendants, aggregation is impermissible.

Diversity - Amount in Controversy - Aggregation

These rules instruct a court on the appropriate state law to apply when a lawsuit touches on more than one state. In a federal diversity suit, Erie requires that federal courts apply the choice of law rules of the state in which it is sitting. That is, there is no federal law on point and conjuring up distinctly federal choice of law rules would only encourage forum shopping. Thus, such rules are properly applied in diversity cases and labeled "substantive."

Erie Analysis Choice of Law Rules Are Substantive

Plaintiff does not have to prove physical injury. Plaintiff has to prove the distress suffered was severe and significant/substantial, as opposed to trivial and short-lived/transitory. More than the level of mental distress a reasonable person could be expected to endure.

Intentional Infliction of Emotional Distress Severe emotional distress

1. Plaintiff must prove four elements: a. An intentional misrepresentation by defendant b. Of past or present fact c. Made with scienter d. On which the plaintiff justifiably relies to his economic detriment Generally an affirmative assertion of fact or an act of concealment.

Intentional Misrepresentation (Fraud)

When P sues D in a federal diversity action, P's compliance with the statute of limitations will normally be controlled by state law. That is, there is normally no federal law on point, and the application of state law is necessary to prevent forum shopping/unfairness. Thus, state statute of limitations law is applied (and labeled "substantive").

Erie Analysis Statutes of Limitations Are Substantive

= during my life

Inter vivos

(a) order a new trial (b) order the jury to re-deliberate or (c) enter the verdict appropriate to the specific answers

Jury Verdicts - General Verdict With Specific Questions If the verdict and answers to the questions are inconsistent, the judge can:

(1) General Verdict: a statement that P wins or D wins. (2) Special Verdict: the jury must answer specific questions of fact. For example, a court may ask the jury to decide whether "P was contributorily negligent in failing to wear her seatbelt" (3) General Verdict With Specific Questions - statement of whether P or D wins, with answers to specific questions of fact

Jury Verdicts - Types of Verdicts

self defense, homicidal self defense, the retreat rule, defense of a third person, defense of property, necessity

Justification Defenses

If a lease is entered into and the landlord has leased property to the tenant, then the tenant is the one who has the possessory right to the property. Landlord can only retake the property if the tenant has committed a material breach of the lease. (a) At common law: landlords were entitled to use reasonable force to retake possession from the tenant if there was a material breach. (b) Today. A majority of jurisdictions no longer allow the use of any force and must resort to legal process. Generally, the landlord has to give notice to the tenant to either cure the breach or vacate. There will then be a hearing to determine whether the tenant has committed breach, and if it is found that they have, they will be evicted. Courts will not uphold what they view as a retaliatory eviction.

LL/Tenant - Fight over Possession

The President may grant reprieves and pardons for offenses against the United States, except in cases of impeachment 1) President can only issue pardons for federal crimes and not state crimes. You would need clemency from the governor of the state for a state crime. 2) A pardon cannot undo an impeachment since it is not a criminal conviction. It cannot restore you to office.

Executive Power Chief Executive Pardon Power

The President has the power to make treaties with the consent of the Senate. The Senate must ratify the treaty by a 2/3 vote before it becomes effective. (2) Treaties and Federal Law: Treaties have the same status as federal law and will override earlier federal law. (3) Treaties and state law: Treaties take precedence over any conflicting state law (regardless of whether a treaty precedes or follows the enactment of the state law).

Executive Power International Affairs Treaty Power

An executory interest is subject to the RAP.

Executory Interests - Rule Against Perpetuities (RAP)

(1) Artificial condition on the land: Duty of reasonable care. (2) Natural condition on the land: No duty unless it is a tree in an urban area.

Land Possessor Liability Plaintiffs not on the land (but adjacent to it)

Motion for relief from judgment must be made within a reasonable time from learning the grounds for relief. If the motion is based on mistake, new evidence, or fraud, it must be made within one year from final judgment. .

Motion for Relief From Judgment - Timing

Pretrial rulings on admissibility (e.g., prosecution asks the court to allow it to use a prior felony conviction to impeach defendant).

Motions in Limine

Malicious prosecution arises when criminal proceedings are instituted by defendant, done for an improper purpose and without probable cause, which terminate favorably to plaintiff and cause plaintiff damages.

Malicious Prosecution

An act that is wrong only because it violates a statute.

Malum Prohibitum Crime

(a) personal or family hostility or relationship (b) business relationship (c) confidential informant (d) fee arrangement (i.e. fee paid to an expert or an informant)

Methods of Impeachment Bias or Prejudice (NO FRE Number) Examples

Arrest records, indictments, and other charges: are inadmissible under Rule 609

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) Arrest records, indictments, and other charges

No; improper to impeach

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) Can you ask a character witness if their opinion would change if they knew the defendant was guilty?

If the defendant is a utility courts have refused to impose duty beyond those who are in privity of contract to the utility.

Negligence Duty When the defendant is a governmental entity Utility function

(1) Acting in an area traditionally occupied by private entities. (2) The government will be treated as any other defendant for the purpose of determining duty.

Negligence - Duty when the defendant is a governmental entity Proprietary function

Where defendant's conduct also violates a statute that does not provide for civil liability (usually a criminal statute), the statute may establish the standard of conduct for breach of duty purposes.

Negligence Per Se

Generally, a defendant has no duty to avoid the negligent infliction of pure economic loss on another. EXCEPTION - Special Relationship Special relationship through privity of contract. Special relationship through third party beneficiary of contract - defendant knows they are acting for the benefit of a third party and third party relies on this and suffers an economic loss Special relationship between a lawyer who drafts a will and a would-be beneficiary who loses due to faulty will drafting

Negligent Misrepresentation

Objective impossibility occurs where the contract becomes literally impossible for anyone to perform because of circumstances beyond the control of the parties. Common objectively impossible circumstances: (1) Subject matter of the contract is destroyed, (2) Performing party under a personal services contract has died or become incapacitated, or, (3) Supervening law or legal developments have rendered performance legally impermissible

Objective impossibility occurs

To find a breach of duty, the plaintiff must identify the defendant's unreasonable conduct through direct or circumstantial evidence by a preponderance of the evidence. The happening of the event alone doesn't establish any sort of unreasonable conduct on the part of the defendant.

Proof of Breach of Duty

Defendant acts with the conscious objective to bring about a prohibited result. Defendant's goal is to produce the criminal harm.

Purpose

Buyer cannot sue since it is an as-is deed. No warranties or covenants. Seller conveys whatever interest he has. "as is" deed

Quitclaim deed:

1. Any foreseeable plaintiff is entitled to bring an action. 2. Analyze the conduct of each defendant and ask whether it was reasonable. a. Differentiate from strict products liability, which considers the product rather than the person. 3. Res ipsa loquitur takes the place of a manufacturing defect in negligence theory. Cannot be used for strict liability. 4. Negligence defenses apply.

Product Liability on a Negligence Theory

(a) The Court upheld the registration of males but not females for draft by the military because Congress, pursuant to its military powers, had determined that this was necessary to further important government interests. (b) State statutory rape laws may set the age of consent higher for females than for males. This is based on an actual biological basis. Females can become pregnant and there is a state interest in preventing teen pregnancy.

Sex Discrimination Examples where discriminating laws were held to be constitutional:

Laws that treat men and women differently must meet intermediate scrutiny. If the discrimination is motivated or reinforced by sex stereotypes, it will most likely be unconstitutional.

Sex Discrimination - level of scrutiny

a) The members would otherwise have standing to sue in their own right; b) The interest asserted is germane to the association's purpose, and c) Neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit.

Specialized Problems of Standing An organization has standing to assert the claims of its members, even if the association has not suffered any injury itself, if:

Professionals must comply with the customs of their profession. Courts will defer to the standards of the profession.

Standard of Care: Professionals

Doctors must divulge those risks that are customarily divulged.

Standard of Care: Professionals Negligence-Traditional Doctor Rule

Breaking to exit is not a burglary Entry is achieved by: placing any part of the body inside the structure At common law: putting a tool in the structure was insufficient; must be body In most jurisdictions today: using a tool to take something from in the structure would qualify

And entering (Burglary)

A contract falling within the land provision because a leasehold is an interest in land. Other jurisdictions exclude short-term leases of a year or less from the Statute of Frauds.

Statute of Frauds - Land-Sale Contracts Lease of Real Property

Although land is involved, these are service contracts and are not governed by the land provision of the Statute of Frauds. Some jurisdictions have resolved this by adding a separate category to their Statute of Frauds specifically for brokerage agreements.

Statute of Frauds - Land-Sale Contracts Real estate brokerage agreements

Generally: interests are fully transferable, but landlord may write a prohibition on transfer into a lease. Prohibitions are narrowly construed. If consent is involved the landlord must act reasonably and in good faith in deciding whether to grant consent for the transfer If there is an express prohibition against an assignment in a lease, and the landlord either expressly or impliedly waives that restriction, once waived it is deemed waived for the remainder of the lease except if specifically stated otherwise.

Tenant's Transfer of Interest - Transfer of Interest in Leases Landlord consent?

Express agreement between landlord and tenant. Can be oral unless duration is longer than a year, then it has to be in writing. Term is specified in the agreement.

Term of Years Lease Creation

Has a definite beginning and a definite end - a set date. EXAMPLE: Tenant leases property for five years. Tenant leases property for one month.

Term of Years Lease Definition

Automatically at the end of the period. No notice is required to terminate a lease for a term of years. Example: Tenant leases property for three years, moves in on 1/1 of Year 1. On 12/31 of Year 3, that tenancy automatically ends.

Term of Years Lease Termination

(a) Death of either party after the offer is made terminates the power of acceptance. (b) Incapacity - if either party becomes mentally incompetent, the power of acceptance is terminated.

Termination by Death or Incapacity of Either Party

An offer lapses after the time stated in the offer or if no time is stated then after a reasonable amount of time. The reasonable time determination is based on the following factors: 1) Factor #1: subject matter and market conditions - if it's a volatilely priced product, the offer lasts for less time 2) Factor #2: degree of urgency and means of transmission; how are the parties communicating? Face-to-Face Conversation Rule: an offer made in a face-to-face conversation generally lapses at the end of the conversation, unless the offer says otherwise.

Termination by Lapse of Time

Misuse If a plaintiff uses a product in a manner that is neither intended nor foreseeable, she has misused the product and it cannot be defect. Alteration Employers remove safety devices in order to make a machine more efficiently. No liability. Assumption of the Risk Comparative fault is no defense, only assumption of the risk is a defense.

Strict Liability Products Liability Defenses

(a) Affirmative act in furtherance of the intent, and, (b) Intent to abandon I.e. a railroad company not only stops using the track, but also rips it out of the ground

Termination of Easements - Termination arising from the actions of the easement holder - Abandonment

Owner of the servient estate: (1) detrimentally and reasonably relied on the easement holder's action/abandonment, and (2) the reliance was foreseeable.

Termination of Easements - Termination arising from the actions of the easement holder - Estoppel

Owner of dominant estate tries to sever the easement from the dominant estate, it will terminate the easement.

Termination of Easements - Termination arising from the actions of the easement holder - Severance

Generally, providers of services are not held strictly liable for injuries received by their customers. When there is both a service and a product ----- Predominate test applies. If defective goods are supplied along with services, strict liability is still not applicable, so long as the goods supplied were merely "incidental" to rendition of the services.

Strict Liability Products Liability Proper Context for Strict Products Liability

Commercial suppliers at all levels of the distribution chain and those in the market of selling the product are potential defendants. This includes manufacturers, wholesalers, retailers. This does not include occasional sellers and those supplying services.

Strict Liability Products Liability Proper defendant

Look for superseding and intervening causes which might cause the defect. Learned Intermediary Doctrine: If a manufacturer provides a warning to a doctor, they can expect that the doctor will pass it on to the patient. If he does not do so, the doctor is a superseding cause.

Strict Liability Products Liability Proximate Cause

(1) Regulatory offenses (2) Public welfare offenses (3) Morality crimes (such as rape or bigamy) (4) Selling liquor to minors

Strict Liability Crimes include...

Consent is the most common defense.

Battery Privileges and Defenses

(1) Affirmative risk-creating conduct OR (2) Negligent omission

Negligence Misfeasance:

Majority/Restatement rule -- a promise is supported by consideration if based on a bargained-for exchange. Performance as Consideration? For a performance to be considered consideration that is part of a bargained-for exchange, the court determines whether the promisee suffered a legal detriment in engaging in the activity. In other words, the promisee is: (a) doing something he had a legal right not to do, or, (b) is forgoing in some activity in which he had a right to engage.

"Bargained-for" Consideration and the "Detriment" Test

*Destruction of evidence* held by the government violates due process only where the defendant can show the destruction was in *bad faith*

*Destruction of evidence* held by the government

A *"critical stage"* includes: police questioning, physical iine-ups, preliminary hearing, and trial.

6th Amendment "Critical Stages"

Unlike Miranda, the Sxith Amendment does not prohibit police from seeking a waiver of the right to counsel. Government agents are permitted to approach the defendant to elicit a waiver of his Sixth Amendment assistance of counsel during questioning. The waiver is effective so long as the defendant knew the rights he was giving up and did so voluntarily.

6th Amendment Waiver

a. If the witness is telling the police or a 911 operator what is happening in order to help them respond to an ongoing emergency it is not testimonial and not subject to confrontation. b. If the witness is telling the police or a 911 operator what has happened as part of their investigation it is testimonial.

911 Calls and Confrontation Clause

....the probative value of the witness's testimony is outweighed by unfair prejudice

A court may excuse a witness if....

(1) handwriting exemplars (2) voice exemplars (3) bank records (4) pen registers, which record telephone numbers dialed (5) information on an email sent through an ISP (but the contents of the email are within a REP); (6) conversations the suspect believes are private that the police record with the consent of the other party to the conversation (a false friend) (7) Open fields: unoccupied areas beyond the curtilage of the home, even if police trespass into the open fields (8) Naked-eye observations of private property by air so long as police comply with flight limitations (9) Aerial photography of the large fenced in area around an industrial complex (10) Discarded property, such as commingled garbage and abandoned rental premises.

A defendant does not have a reasonable expectation of privacy in the following items because they have all been knowingly exposed to the public:

A vested remainderman: can sue for both damages or an injunction to stop is from occurring A contingent remainderman: cannot sue for damages, but can sue for an injunction to stop the waste from occurring

A holder of a remainder has standing to sue for past or future waste. Contingent v. Vested?

(1) extraneous prejudicial information improperly brought to the juror's attention; (2) whether any outside influence was improperly brought to bear on any juror; or (3) clerical/secretarial error (i.e., mistakes on the verdict form). Specific examples to be on the lookout for where a juror's testimony will be ADMITTED when challenging a verdict (1) A juror may be questioned regarding whether or not someone brought in a newspaper article about the case. (2) Juror made an unauthorized visit to the scene. (3) Juror accepted a bribe. (4) Juror conducted his own out-of-court experiment regarding evidence presented at trial. (5) Threats of harm made against the juror or juror's family members. (6) Communication by juror with court personnel regarding the case. (7) Juror brought a Bible into the courtroom and read passages to other jurors suggesting defendant's guilt.

A juror MAY, however, TESTIFY as to:

An estate where the duration is measured by the life of someone other than the grantee. Examples: "A to B for the life of C." As long as C is alive, B owns the property. If B dies before C, it becomes part of B's estate and will continue so long as C is still alive. Under the majority interpretation, if the conveyance has more than one measuring life, it is interpreted as lasting until the death of the survivor. "A to B for the lives of C and D." If C outlives D, C is the measuring life.

A life estate pur autre vie

A vested remainder subject to open is a remainder that has been made to a class and has at least one ascertainable member who has satisfied any conditions precedent to vesting, but may have other members join the class later

A vested remainder subject to open

A vested remainder subject to total divestment is presently vested but may be terminated on the happening of a future event. Example: "A to B for life, remainder to C, so long as liquor is never served on the premises." C has a vested remainder but could lose it by serving liquor on the premises.

A vested remainder subject to total divestment

the witness' credibility for truthfulness has first been attacked. NO bolstering in advance

A witness's character for truthfulness can be shown by reputation or opinion evidence ONLY IF:

Defense to abandonment (1) At common law: abandonment is not a defense once the attempt begins ; there's no abandonment defense (2) Under the MPC: a complete and voluntary abandonment is a defense

Abandonment (of attempt)

1. Common law: a. The death of either the victim or the tortfeasor abated a tort action between them. 2. Survival Statutes: a. The death of the victim or tortfeasor no longer abates the tort action and the claim can be brought by the estate of the deceased. 3. Wrongful Death Statutes: a. All jurisdictions statutorily provide for an action by which either heirs of a deceased victim or the personal representative of the victim's estate may bring an action against the tortfeasor responsible for the victim's death.

Abatement/Survival of Action and Wrongful Death

Hidden mortgage agreement A debtor borrows money and then issues a deed to the property to the creditor that looks absolute on its face (looks like a clear cut transfer of property from debtor to creditor) Extrinsic evidence would be required to establish that this was not meant to be an absolute conveyance, rather a disguised mortgage arrangement. The actual agreement was for creditor to return property after debt had been paid

Absolute Deed or "Deed Absolute"

Abuse of process exists where defendant intentionally misuses a judicial process (whether civil or criminal) for a purpose other than that for which the process is intended. This tort also parallels malicious prosecution

Abuse of Process

The proper scope of non-expert opinion includes: VEMPSS (1) V: Value of one's own land (2) E: Emotional state of others (3) M: Measurements - speed of a vehicle; height, weight, distance (4) P: Physical states - intoxicated; tall/short; fat/skinny; healthy/sick; happy/sad (5) S: Sensory descriptions (smell, sound, taste, color) (6) S: Sanity of a testator Improper scope: Opinions stated in conclusory terms are NOT appropriate. EXAMPLE: The plaintiff was contributorily negligent. EXAMPLE: A contract existed. EXAMPLE: Defendant assaulted victim. Legal conclusions must be avoided - schizophrenic; alcoholic; addict; sociopath

Acceptable Testimony Opinion Testimony by Lay Witnesses (Rule 701) Scope

The requirements for testimony are that experts are: (1) Qualified: An expert must have special skills, knowledge, education, experience, or training (2) Relevant: Subject matter must be appropriate, and the opinion must be helpful/relevant to assist the jury. The opinion must be based on reliable methods, devices, or techniques to determine reliability of scientific tests: (1) other expert testimony (foundation)—battered wife syndrome; (2) by stipulation—polygraph; (3) by judicial notice—radar, ballistics, Breathalyzer. Rule 702 Formula: Qualifications + (Relevance + Reliability) = Admissibility

Acceptable Testimony Testimony by Experts (Rule 702)

One who aids or abets a principal after commission of the crime. This requires proof of: a. a completed felony b. the accessory must hav eknown of the commission of the felony c. the accessory personally aided the felon to prevent apprehension d. In all modern jurisdictions, one who meets the requirements to be a common law accessory after the fact is charged with a distinct crime, such as hindering apprehension or obstruction of justice, not with the crimes committed by the principal.

Accessory After the Fact (Accomplice)

An aidor or abetter who is not at the scene of the crime

Accessory Before the Fact (Accomplice)

a. At *common law*: an accomplice could withdraw by *notifiing the principal and nullfiying the effect* of the prior contribution before the crime occurred LOOKOUT - tell you i'm stopping, and leaving BOMB - tell you i'm not doing it, and get the bomb back b. The *MPC* requires the accomplice do one of three things: (1) Render his prior assistance to the perpetrator completely *ineffective*; (2) Provide the police with a timely *warning* of the perpetrator's plan; or (3) Make a proper effort to *prevent* the perpetrator from committing the crime.

Accomplice Defenses

A landlord may not consent to the search of a tenant's apartment. A motel owner may not consent to the search of a guest's room. An employer may not consent to the search of an employee's private storage area.

Actual / Apparent Authority to Consent: Landlord, Motel Owner, Employer?

A statement procured by actual coercion; police conduct that *overbears free will* of the suspect is inadmissible for any purpose, including impeachment. Voluntariness standard is assessed based on the totality of the circumstances. Remember, *no impeachment exception* for an actually coerced statement, and *no requirement to be in custody* when the statement is made.

Actual Coercion: the Due Process Voluntariness Standard

All relevant evidence is admissible, unless excluded by the Constitution of the United States, by Act of Congress, by the Federal Rules of Evidence, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence that is NOT relevant is NOT admissible.

Admissibility of Relevant Evidence and Irrelevant Evidence (Rule 402)

In most jurisdictions, the following will elevate a simple battery (misdemeanor) to aggravated battery (felony): (1) the battery causes serious physical injury, (2) use of a deadly weapon, or, (3) a specially defined victim (woman, child, or a police officer)

Aggravated Battery

A simple assault may rise to the level of an aggravated felony assault under certain circumstances. Most commonly, the circumstances include: (1) The defendant commits an assault with a dangerous weapon; (2) The defendant acts with the intent to rape or murder the victim; or (3) The victim is specially protected by a statute.

Aggravated felony assault

These are administrative searches. To protect airline passengers from weapons and explosives, warrantless administrative searches are permitted at airports. A passenger may avoid being searched by declining to board the plane.

Airport Screenings

When states discriminate based on alienage, the level of scrutiny will be strict scrutiny. Public Function Exception: Some jobs or activities are may be withheld from resident aliens including the following: (a) police officers; (b) government officials; and (c) public school teachers.

Alienage Discrimination by States

Life tenant is actually making improvements to the land. At common law: life tenant was not allowed to make substantial alterations unless authorized to do so and could be held liable for cost of restoration of the land to its previous condition. Under modern law, a life tenant is now allowed to commit ameliorative waste if: a) the market value of the remainderman's interest is not impaired, and, b) it is permitted by the remainderman OR c) a substantial and permanent change in the neighborhood that justifies the improvement

Ameliorative Waste

An implied-in-law contractual obligation arises where there is an equitable imposition of a would-be contract. It is an equitable remedy available to prevent unjust enrichment, and arises in situations where one party bestows a benefit on the other. Quasi-contract = equitable imposition of a contract In these cases, a quasi-contract will be deemed to have been formed. *Emergency Services*: A surgeon who performs emergency surgery on an unconscious patient creates an implied-in-law obligation to the patient. EXAMPLE: *Benefits Conferred by Mistake*: A merchant who mistakenly delivers goods to the wrong party may create an implied-in-law obligation on the wrong party.

An implied-in-law contractual obligations

An original includes either the original itself or a duplicate There are three substitutes for an original: (1) Duplicate (Xerox) (2) Certified copy of a public record. FRE 803 (8) (3) Summaries of voluminous records. FRE 1006

An original includes:

First Question: Is the Contract within the UCC Statute of Frauds? Second Question: Is the UCC Statute of Frauds Satisfied? Third Question Is there an Alternative Basis for Enforcement?

Analyzing Problems under the UCC Statute of Frauds (OL IV. E.)

Anticipatory repudiation may be established by: a. a party's definitive statement indicating it will commit a breach of contract, or, b. a party's voluntary act that renders the party unable to perform its contractual obligations

Anticipatory Repudiation

In almost all instances, a party wishing to appeal a district court order must appeal to the Court of Appeals for the circuit in which the district court sits. If a party desires to appeal a Court of Appeals order or judgment, the only avenue for appeal is to the United States Supreme Court. The Supreme Court is not obliged to hear any appeals; it hears appeals at its discretion.

Appeals - Appellate Courts

A party may immediately appeal an order that the district court has "certified" for appeal. They are orders that a court has issued that it decides should be "certified for appeal." Courts are free to certify an order if three conditions are met: (a) The order involves a controlling question of law; (b) The issue of law is one on which there is substantial difference of opinion; and (c) An immediate appeal will materially advance the ultimate resolution of the action.

Appeals - Certified Order

Any party may immediately appeal a district court decision granting or denying a motion to certify a class in a putative class action suit.

Appeals - Class Certification

The collateral order doctrine, which is extremely narrow, permits a party to appeal an order if three conditions are met: (a) The order pertains to a matter unrelated to the merits (i.e., "collateral" to the merits); (b) The order conclusively decides a particular issue; and (c) Delaying appeal until a final judgment has issued would effectively deny appellate review of the issue.

Appeals - Collateral Order

Any party may immediately appeal a district court order granting or denying a preliminary injunction or temporary restraining order.

Appeals - Preliminary Injunctive Relief

If the defendant initially appeared in the case but later refused to defend the action, the court may issue a default judgment only if the defendant has been served with written notice of the application for default seven days before a hearing on the application.

Appearance but Later Default

In general, an appellant must file a notice of appeal in the district court within 30 days of the judgment (or within 30 days of the order that is the subject of the appeal). Where the appeal is based on an order granting or denying class certification the appellant has 14 days to file a notice of appeal.

Appellate Procedure In General

If a post trial motion has been filed (e.g., a renewed motion for judgment as a matter of law, a motion for new trial, or a motion for relief from judgment), and the court denies the motion, a new 30 day period begins to run from the date of the denial. If the motion is granted, the judgment is no longer final and no appeal is permissible unless the order can be certified or characterized as a collateral order.

Appellate Procedure When Post Trial Motions Have Been Filed

1. Was there *government* action? 2. If so, did it trigger a constitutional *right* (for example, was it a search or seizure, or was the suspect subjected to custodial interrogation)? 3. If so, did the government *violate* the constitutional right (for example, was the search or seizure unreasonable, or did the police violate the Miranda rule)? 4. If so, is YOUR defendant entitled to the remedy of *exclusion*?

Approach to a Criminal Procedure Question

When a party seeks to introduce parol evidence, its admissibility in court will depend on: (1) The purpose for which the evidence is being introduced, and, (2) Whether the evidence relates to a term or contract which is integrated

Approaching a Parol Evidence Analysis

Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has no power to impound (i.e., refuse to spend or delay spending) the authorized funds.

Appropriations Power

Probable cause is: always required for an arrest There is no requirement to obtain a warrant to arrest a suspect in public, as long as: police have probable cause to arrest the suspect. A suspect is like any other piece of evidence the police seize. If the suspect is in public and police need not intrude upon a REP to arrest the suspect, then like evidence in plain view police need not obtain a warrant to arrest (seize) the suspect.

Arrests

a. At common law: a malicious act that creates a considerable risk of the burning of the dwelling of another. (1) Malice may be established by intent or as the result of extreme recklessness. (2) Arson requires proof that some portion of the structure was damaged as the result of burning. b. Modern statutes: have dispensed with the dwelling requirement.

Arson

No contradictory evidence is permitted on that issue

As a general rule, once a fact is judicially noticed:

An assault arises where the defendant intentionally causes plaintiff to experience reasonable apprehension of an immediate harmful or offensive contact. Elements: (1) Intent (2) Reasonable apprehension (3) Imminent battery Words alone rarely create an assault.

Assault

For an assault to take place the battery has to be able to be carried out almost instantaneously without substantial delay. EXAMPLE: If Dracula says he will come back tomorrow to suck your blood, it is not an assault.

Assault Imminence:

Where the plaintiff professional rescuer is injured in doing her job, due to an inherent risk of that job she cannot recover in negligence against the person who created the need for her to do her job.

Assumption of the Risk Professional rescuers (Firefighter Rule):

Modern statutes generally dispense of this requirement; can have a daylight burglary

At night (Burglary)

a. Impeachment of a hearsay (out-of-court) declarant: accomplished in the same way a declarant on the stand is impeached. b. A hearsay declarant's credibility may be attacked and the declarant may be impeached through bias, prior conviction, PINS, etc.

Attacking and Supporting Credibility of Declarant (Rule 806)

1. *Specific intent* / purpose to commit a target offense 2. An *overt act* that prove defendant began to perpetrate that offense

Attempt

Evidence with a "but for" link to a poison tree may be so *distant* from the initial illegality that the poison no longer reaches the evidence. This exception turns on a combination of the flagrancy of the constitutional violation (the more flagrant, the more potent the poison) and the distance between the violation and the evidence. This exception will often be asserted when police obtain a voluntary confession following an unlawful arrest. If the confession follows immediately after the arrest the exception will rarely apply. Factors supporting attenuation include: a) A *different location* b) Passage of *time* c) *Different officers* d) A valid Miranda *waiver* It is easier to attenuate the taint of an arrest that is unlawful because the police failed to obtain a required warrant even though they had probable cause (like an in home arrest without a warrant) than an arrest where the police did not even have probable cause. This is because the "poison" from the first violation is less potent than the "poison" from the second violation.

Attenuation

Includes oral/written statements plus conduct intended to be confidential Communications are protected, observations and objects (pieces of evidence) are not. Pre-existing documents are not privileged. Work product is privileged material prepared by the attorney herself in anticipation of litigation (documents, files, notes). EXCEPTION TO PRIVILEGE: If the party seeking admission can show: (1) a substantial hardship, and, (2) no other way of obtaining the evidence, then admissible.

Attorney-Client Privilege 1. Confidential Communications 2. Work product 3. Privilege exception

Client includes any person (public officer, corporation, or association—public or private) who is: SEEKING professional legal services OR consulting with the possibility of obtaining such legal services

Attorney-Client Privilege "Client"

Police may search an automobile or any other self-propelled conveyance (motor home, boat, or airplane) without a warrant so long as they have *probable cause*. The warrant exception applies to: *any container* in the vehicle. This means that if police have probable cause to search inside a closed container once that container is in a car, they may search it without a warrant. Once police have probable cause to search the moving or temporarily stopped vehicle, they may *seize the vehicle*, bring it to the police *impound* lot and search it later: This is the case even if there is sufficient time to obtain a warrant between seizure of the vehicle and search. The permissible scope of the search is dictated by the probable cause, which prohibits police from automatically searching the entire vehicle.

Automobile Exception to the Warrant Requirement

Insnaity, intoxication, duress

B. The Excuse of Lack of Mental Responsibility

The defendant is entitled to an *individualized assessment* of bail. 1. The purpose of bail is to secure the presence of the accused at trial. 2. There is *no constitutional right to bail*. If bail will be ineffective to secure the accused at trial, it may be denied. 3. If bail is appropriate, it *may not be excessive* in proportion to the offense.

Bail Hearing

A party that breaches a contract may recover the benefits conferred on the non-breaching party so long as there is an offset for any damages caused by the breach.

Benefits Conferred by a Breaching Party

Bigamy is the crime of marriage by one individual to more than one other person. Bigamy is a strict liability offense, requiring no mens rea. It is no defense that the defendant did not know about the other marriage.

Bigamy

Offeror makes a promise and seeks a promise in exchange. Under a bilateral contract, the offeree can accept the offer by making the requested promise. Once promises are exchanged, both parties are bound.

Bilateral Contract

Both federal and state legislatures are prevented from passing bills of attainder. A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct. An ex post facto law will not single out an individual or a group whereas bills of attainder do. Bills of attainder also will not involve a trial.

Bills of Attainder (OL VIII. C.)

The blood-alcohol level of a drunk-driving suspect will diminish over time. An individual suspected of murder by strangulation may have evidence under his fingernails that he may easily remove. Both types of evidence are easily destroyed or likely to disappear and thus may be obtained from the suspect's body by reasonable means, such as withdrawing blood by a trained medical specialist, or scraping under the nails with a nail file. If the method used was the only viable means to protect the evidence, it is more likely to be considered reasonable. You don't automatically have exigency for blood alcohol. Police have the burden of justifying not getting the warrant. No per se rule, but if there's a exigency it's ok.

Blood Alcohol and Exigency

Paying the purchase price or a reasonable amount for the property, something more than a nominal amount. 1) A mortgagee is someone who has paid value; For mortgagee to be deemed to pay value, mortgage must be issued at the time of the loan, in exchange for the loan 2) A judgment creditor is someone who will lose out to prior conveyances, gets no protection because a judgment creditor did not "pay value"

Bona Fide Purchaser - paying value

Use of force to create an opening Common law: expanding an existing opening was not a breaking Most statutes today: have either relaxed the "breaking" element to include expanding an existing opening, some have deleted it altogether Constructive breaking: Under all law, gaining entry by fraud or threat constitutes a breaking.

Breaking (Burglary)

There are two main ways to shift a burden of production: (1) Affirmative defenses EXAMPLE: Statute of limitation; establishing jurisdiction, Rule 12b6, self defense, laches. (2) Presumptions: A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true.

Burden Shifting

The burden of persuasion is a question of the degree to which evidence must be proven for a party to prevail

Burden of Persuasion

The burden of production is a question of who has to initially produce evidence in the case. In civil trial, plaintiff. In criminal trial, prosecution.

Burden of Production:

An executory interest is a future interest in a third person that cuts short the previous estate before it would have naturally terminated.

Executory Interests

Insufficient consideration = is that there was no consideration for a particular promise and no bargain = want of consideration Inadequate consideration = assumes there is consideration, but argues it isn't enough, and so the deal is unfair; this is typically not policed by courts Failure of consideration = consideration promise was made and it was enough, but not followed through

CONSIDERATION --- Insufficient v. Inadequate v. Want of v. Failure of

The formula: Loss of value of the breaching party's performance (difference between promised value and value now) + any incidental and consequential costs generated by the breach - any payments received from the breaching party - any costs saved as a result of the breach = Expectation Damages of the Aggrieved Party

Calculating the Monetary Award

Carrier cases occur where parties to a sale of goods agree to use a common carrier such as a trucking firm, train, etc. Non-carrier cases are those in which a common carrier is not used. In non-carrier cases, when does the risk of loss transfer? (1) If seller is not a merchant the risk of loss passes to the buyer upon tender of delivery (2) If seller is a merchant the risk of loss passes to the buyer when the goods are physically in the buyer's possession

Carrier Cases versus Non-Carrier Cases In non-carrier cases, when does the risk of loss transfer?

The defendant's conduct must be both the actual and proximate cause of the criminal result.

Causation

The element of cause-in-fact ties the defendant's breach of duty to the plaintiff's injury. Plaintiff only has to show that it was more likely than not, plaintiff would not have been injured. Four areas where cause-in-fact issues arise a. Multiple causes b. Loss of chance c. Alternative liability theory d. Market share liability

Cause-in-fact (Actual Cause)

Where multiple defendants exist, alternative liability theory allows a plaintiff to shift the burden of proving causation to the opposing side (even though only one was responsible). Factors: (1) Need a small number of defendants (2) Each defendant was negligent (3) Each defendant is before the court

Cause-in-fact (Actual Cause) Alternative liability theory

Traditional application - plaintiff would lose if they were a misdiagnosed patient and would have died even if diagnosed correctly Loss chance = loss of the chance you had of surviving Many jurisdictions recharacterize the injury: (a) Damages are reduced but not extinguished.

Cause-in-fact (Actual Cause) Loss of chance

There are questions of law or fact common to the class.

Class Actions (Rule 23) Commonality

FIRST RESTATEMENT - third-party beneficiaries are in one of three categories: (1) *Creditor beneficiary* (2) *Donee beneficiary* (3) *Incidental beneficiary* SECOND RESTATEMENT - eliminates the "creditor" and "donee" beneficiary terminology, and instead puts third-party beneficiaries into one of two possible categories: (1) *Intended beneficiaries* (2) *Incidental beneficiaries* The key factor in determining whether a party is an intended beneficiary is *the intent to benefit test* - did the parties specifically intent for the party to benefit? Incidental beneficiaries, similarly to the First Restatement, are *third parties who will benefit from a promisor's performance as a practical matter, but are not intended beneficiaries.*

Classification of the Third-Party Beneficiary

i) *Non-Violent Felon Exception*: A minority of common law jurisdictions exempt from felony murder liability a non-violent co-felon, for example, one who was not armed and did not participate in or have any knowledge of the co-felon's intentions. ii) *Deserving Victim Exception*: A minority of common law jurisdictions also exempt from felony murder liability a killing of a co-felon (remember this as the "deserving victim" exception). iii) *Redline Limitation*: Many common law jurisdictions apply a limited form of the agency doctrine, exempting from felony murder liability killings at the hand of a non-felon when the killing : a justifiable or excusable homicide on the theory that there is no unlawful killing to attribute to the felons (such would be the case where the police or the victim shoots one of the co-felons, but not where the killing is done by one of the felons). EXAMPLE: A bank robber would not be charged with felony murder under this limitation if his accomplice is justifiably killed by the police.

Co-Felon Liability - Exceptions to the Common Law and Majority Rules

(1) Taxes/mortgage payments (2) Repairs. (3) Improvements.

Co-Tenancy - Types of Expenses

Generally, there is no duty imposed on any co-tenant to improve property. One co-tenant who chooses to improve the property cannot get contribution from other co-tenants. If one co-tenant improves the property and the property is then sold, any amount attributable to the improvement should go to the tenant who made the improvement.

Co-Tenancy Improvements

If profit produced by one of the co-tenant's efforts, then the other co-tenants have no rights to share in those profits unless they have been ousted from use of the property. If profit generated by what a third party is doing with the property (rent) all co-tenants are entitled to a proportionate share of that rent.

Co-Tenancy Profits

Each co-tenant must pay a proportionate share.

Co-Tenancy Taxes/Mortgage payments

Criminal The prosecution may not comment on defendant's refusal to take the stand Civil The opposing party can comment and so create a negative inference

Commenting on the privilege

(1) If the offer stipulates a particular means of communicating acceptance, then that becomes the authorized means of acceptance. (2) If the offer is silent as to the means of communication, then the offeree is free to use any reasonable means of transmission. Unless the circumstances indicate otherwise, a means of transmission is reasonable if it is: 1) the means used by the offeror; 2) the means customarily used in similar transactions; or 3) a means of communication that is equivalent in speed and reliability to the means used by the offeror. Three Exceptions: 1. Acceptance by silence 2. The Unilateral Contract 3. Acceptance by Mail or other correspondence

Communicating the acceptance to the offeror under common law

Reduces the plaintiff's recovery based on the plaintiff's % of fault. Pure comparative fault: Plaintiff is allowed to recover no matter how much at fault he is , but you subtract away his fault. Modified comparative fault: If plaintiff is as much or more at fault, then the plaintiff is not entitled to recover. Joint and several liability applies to comparative fault. If there are multiple defendants, each of whom are negligent and the plaintiff is also at fault, we subtract out the plaintiff's percentage of fault and then the plaintiff can sue one to get the full remaining amount of damages and then that defendant can seek contribution.

Comparative fault

Under concurrence doctrine, the defendant's act which caused the criminal result must be set in motion by the requisite criminal state of mind. I.e. For burglary, breaking and entering must be actuated by intent to steal. NOTE - This does not necessarily mean that mens rea and the act occur precisely at the same time.

Concurrence in time

Joint Tenancy, Tenancy in Common, Tenancy by the Entirety

Concurrent Ownerships include

A condition on a gratuitous promise is something a promisee must do to avail herself of the promisor's gift; it does not count as consideration.

Condition on a Gratuitous Promise

If the plaintiff consents to being confined there is no false imprisonment.

Confinement Against the plaintiff's will:

If the plaintiff is aware she is being confined there is false imprisonment and the plaintiff is entitled to any damages the jury finds appropriate. If the plaintiff is not aware that she is being confined there is only a claim for damages if the plaintiff is injured due to the confinement.

Confinement Harm or damages:

Plaintiff may be confined by: - - the use of physical barriers (i.e., locking plaintiff in a room) - - failing to release plaintiff where defendant has a legal duty to do so - - invalid assertion of legal authority - - force or threat of force to plaintiff / plaintiff's family (threats to reputation are insufficient) If plaintiff knows of a reasonable means of escape there is no confinement and therefore no false imprisonment Reasonable = can't be embarrassing; no risk of injury No duration of confinement is required - a very brief confinement will suffice, though the duration of the confinement may affect the amount of damages

Confinement:

Relevant (therefore generally admissible) to show a guilty mind. Examples: 1) fleeing the scene; 2) threats by defendant against a witness; 3) hiding from police; 4) using an alias; 5) failure to submit to a blood alcohol test.

Consciousness of guilt evidence

Consequential damages are the peculiar costs arising to the buyer because of the particular need or use for the goods in question.

Consequential Buyer Damages under UCC

A landlord has allowed the condition of the premises to deteriorate to the point that the tenant is essentially being forced out. The use and enjoyment of property is being substantially interfered with. Tenant must actually move out within a reasonable time following the act constituting the substantial interference to have a defense for non-payment of rent. *If the constructive eviction is an action of a third party*: the landlord knew or should have known of the interference that would cause the constructive eviction

Constructive eviction third party eviction

Police may not reasonably rely on third party consent when the other resident is presenting and objecting. However, if the suspect is not present and does not object, the co-tenants consent is valid against him. Even if the co-tenants objects, if they are removed and the other co-tenant consents, search is reasonable.

Contested Third Party Consent

The question of whether a particular contract is to be performed within one year of the making thereof asks whether the contract can be performed in full by its terms within one year of its formation. When a contract does not specify a date by which performance is to be completed, the question of whether a particular contract is to be performed within one year of the making thereof is answered by determining whether it is at all possible to complete the required performance within a year's time. Measured from the date of making the contract rather than the date of the beginning of performance. It is irrelevant whether the contract can be breached or excused within a year of its formation - only looking to see if it can be PERFORMED.

Contracts Not to Be Performed within a Year

There are three general categories of contractual obligations: express, implied-in-fact, implied-in-law

Contractual Obligations

Under Fed. R. Civ. P. 30(b)(6), a corporation, when noticed or subpoenaed for deposition, must designate one or more persons who consent to testify on its behalf. It may set out the matters on which each person designated will testify. The designated persons must testify about information known or reasonably available to the organization. Consequently, the person must prepare to be deposed.

Corporation Depositions

A covenant dictates how land is to be land to successors in interest. For a covenant to run with the land, the following elements must be satisfied: (1) Privity (2) Intent Intent that the covenant run with the land (3) Notice Did the successor have notice? (4) Touch and concern the use and enjoyment of the land

Creation of Covenants For a covenant to run with the land, the following elements must be satisfied:

The writing must include language that shows the parties' intent for the covenant to run with the land and bind successors in interest. NOTE - if it cannot be completed in a year, SOF applies

Creation of Covenants Intent

Easement Implied by Prior Use Easement by Necessity Easement by Plat

Creation of Easement by Implication

The promisee may secure specific performance of the promisor's obligation as long as it does not expose the promisor to double liability. To avoid this, some courts will only allow the promisee to recover against the promisor only if the promisee has already made payment to the creditor beneficiary to cover the default.

Creditor Beneficiary - Promisee's Options for Enforcement against Breaching Promisor

Third party beneficiary. When a promisee seeks a promisor that will satisfy an obligation owed to a third party. Creditor who receives $ from one of the parties as part of the agreement. From 1st Restatement.

Creditor beneficiary

A criminal assault is an incomplete battery. There are two types of criminal assault: (1) "Failed battery" assault (2) "Fear of battery" assault If the defendant never intended to actually consummate the battery, the assault must be proved by the fear theory, which requires the victim be aware of the threatened battery.

Criminal Assault

A defendant acts with criminal (sometimes called culpable negligence) when he creates an unjustified risk without subjective awareness of the risk creation and where a reasonable person would have been aware. The conduct creates a high degree of risk of death or serious injury beyond the tort standard of ordinary negligence. More than mere negligence, but less than wanton and willful misconduct. Criminal negligence requires a gross deviation from the normal reasonable standard of care, a deviation greater than that required for civil negligence.

Criminal Negligence

A cross claim is a claim filed by a party against a co-party—i.e., someone on the same side of the "v." Cross claims may be filed only if they arise from the same transaction or occurrence underlying one of the plaintiff's claims.

Cross Claims (Rule 13(g))

Joint Tenancy - most jurisdictions require only interest and possession. Interest Joint tenants must take equal shares of the same type (i.e., each joint tenant take a legal fee simple) Possession Each joint tenant has the right to possess the whole Tenancy in common only requires unity of possession.

Current Creation of Joint Tenancy Creation of Tenancy in Common

The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated "open fields beyond."

Curtilage

a. Designed to return the plaintiff to her pre-injury position. b. Three rules: (1) Type must be foreseeable. (2) Reasonably certain. (3) Not avoidable. Two categories (1) Special damages: (2) General damages:

Damages Compensatory damages

The fact that the plaintiff is getting compensated from a third party source (insurance, union contract etc.), doesn't mean that the defendant tortfeasor doesn't have to pay them. Also applies to gratuitous services.

Damages Compensatory damages Collateral Source Rule:

Defendant is willful, wanton, malicious; conscious disregard for high probability of harm Goal is to make an example of the defendant so he will not engage in the same behavior and others will not as well. Wealth of defendant is highly relevant. Due process clause limits the amount of punitive damage awards The U.S. Supreme Court has held that the due process clause usually limits punitive damage awards to less than 10 times the size of the compensatory damages awarded.

Damages Punitive Damages

Segregation in fact but not by operation of law. This is not discrimination as there is no state action.

De facto segregation

Laws that deliberately segregate on the basis of race. This will face strict scrutiny and almost always be found unconstitutional.

De jure segregation

Arises where the defendant is acting to protect the public from severe harm. Public necessity is a complete defense. Could raise Fifth Amendment takings issues.

Defenses and Privileges to Intentional Torts Public necessity

Have been abolished under the FRE. They can still be tested however. A Dead Man's Statute disqualifies a witness from testifying about any conversation w/ the decedent (his lips are sealed). There is no federal DMS, but there may be state DMS. (1) If a state has a Dead Man's Statute: the federal court will apply it in a diversity case (Erie doctinre)

Dead Man's Statutes:

Although the death of a party after formation of a contract does not automatically discharge that parties obligations under the contract, such an outcome does occur if the contract involves the performance of a personal service. In such circumstances, if the contract is silent regarding the death of a party, the deceased party's performance is excused and his estate incurs no liability.

Death and Impossibility

a. Prior to 1964, there was no First Amendment issue defamation and defamation was a strict liability tort. b. Since NY Times v. Sullivan, four questions are considered: (1) What is the status of the plaintiff? (2) What is the subject matter of the statement? Public or private concern? (3) What damages does the plaintiff seek? (4) What is the status of the defendant?

Defamation Constitutional Issues

Treated just like public officials. Have to prove clear and convincing evidence of actual malice. (1) All purpose public figures: Household names (2) Limited public figures: People who inject themselves into a particular controversy and try to have an effect on that controversy.

Defamation Public figure plaintiff

a. Libel b. Slander

Defamation Type of defamation and damages

Because a third-party beneficiary's rights are entirely dependent on the underlying contract *any valid defenses the promisor has against the promisee are also effective against the third party beneficiary* *The promisor may not assert defenses based on separate transactions with the promisee*

Defenses Available to Promisor

Deadly force cannot be used to meet non-deadly force Retreat: (a) Some jurisdictions require one to retreat before using deadly force, but, (b) One never has to retreat from their own home

Defenses and Privileges to Intentional Torts Self-Defense - must be proportionate to the threat: Retreat rule

A party may use a deposition at a hearing or trial as long as the party against whom the deposition is used had a reasonable opportunity to be present at the deposition, and only according to the following conditions: (a) A deposition of a party or party's designee can be used for any purpose (b) A deposition of a non-party can be used 1) to impeach the deponent, or, 2) if the deponent is unavailable (e.g., by reason of death, infirmity, or disappearance), the deposition can be used for any purpose.

Deposition Use in Hearing or at Trial

If a deposition is conducted in bad faith or in such a manner as to annoy, embarrass, or oppress the deponent, the court may order the officer conducting the examination to cease forthwith from taking the deposition or limit the scope and manner of the deposition. In such event, the court may order the party who was conducting the deposition to pay the attorney's fees of the objecting party [Fed. R. Civ. P. 30(d)]. If the party who gave notice of the taking of a deposition fails to attend, the court may order the party who gave the notice to pay such other party the reasonable expenses incurred by him, including reasonable attorney's fees [Fed. R. Civ. P. 30(g)(1)].

Deposition Sanctions

Most depositions occur during the pendency of the lawsuit. Like other forms of discovery, these depositions cannot be conducted until after the 26(f) conference. In rare cases, a party may wish to depose a witness before a lawsuit is even filed. These are known as "depositions to perpetuate testimony" and are available only if all expected opposing parties are provided an opportunity to be present at the deposition and ask questions.

Deposition Timing

A deposition is used to ask questions of a witness, usually in live setting. (Depositions may be had through writing, but written depositions are rarely used.) Each party may depose 10 witnesses, but may obtain a court order if further depositions are necessary.

Depositions (Rules 27, 30, 31)

Depraved heart murder is an unintentional killing resulting from reckless or grossly negligent conduct, that creates an extreme risk to others and thus demonstrates defendant's wanton indifference to the lives and well beings of others. Malice is implied where Defendant creates extreme risk. If a defendant knowingly creates a high risk of death or serious bodily injury for a logical and socially reasonable purpose, the conduct would not be considered depraved heart murder.

Depraved heart murder:

A product manufactured as the manufacturer intended but that still presents a danger of personal injury or property damage to plaintiff suffers from a design defect. 1) Ordinary Consumer Expectation Test: 2) Risk-Utility Balancing Test Some products are exempt from being found defective in design under strict products liability b/c of their extraordinary social utility. w/ no alternatives (i.e. vaccines).

Design defects

A product is defective if a jury determines that the danger it threatens (the cost in human injury and property damage) outweighs its utility to society. The danger-utility test balances the likelihood, nature, and potential severity of injuries caused by a product against the usefulness of the product, considering the availability and cost of safer alternative designs. A product's design is usually defective under this test if an alternative design could have reduced the danger at about the same cost

Design defects Risk-Utility Balancing Test:

A corporation is a citizen of the state or states in which it is incorporated AND the state in which it maintains its "principal place of business" (can have dual citizenship). A corporation's "principal place of business" is its nerve center, i.e.: the place from which the corporation's senior officers direct the activities of the corporation.

Determining Citizenship - Corporations

Human beings can only be citizens of one state at a time. A human being's state of citizenship is the state in which she resides and intends to remain indefinitely. Someone who intends to remain indefinitely need not intend to stay forever; she simply cannot have any present plans to leave. Hobo Rule: A human being's citizenship does not change until she plants her roots in a new state by residing there and intending to remain there indefinitely.

Determining Citizenship - Human Beings

Citizenship is of incapacitated party, not the citizenship of the representative. Sometimes the party in interest is not able to litigate on his or her own behalf, whether because the party is a minor, deceased, or otherwise lacks capacity. In these instances, litigation occurs through personal representatives. For the purpose of diversity jurisdiction, however, the key inquiry is the citizenship of the incapacitated party, not the citizenship of the representative.

Determining Citizenship - Representatives

Unions, limited liability companies (LLCs), partnerships, and ordinary sole proprietorships. The citizenship of these entities is the citizenship of every member. Thus, unincorporated associations can potentially be citizens of all 50 states.

Determining Citizenship - Unincorporated Associations

1. Specific Performance

Equitable Remedies

A nonconforming acceptance contains different terms when the offer says one thing about a particular issue and the would-be acceptance says something else. 1) Majority rule/"knockout rule": the different terms of each communication dealing with the same topic are knocked out and omitted from the contract (they cancel each other out) 2) Minority rule: the different terms will be treated as mere proposals for addition

Different terms in battle of the forms

No inference is required. Witness testifies "I saw defendant shoot."

Direct evidence

Definition: something that can suspend or toll the running of the statute of limitations. What is a disability depends upon the statute in a particular jurisdiction. Those recognized by a majority of jurisdictions include: (a) Infancy (b) Insanity (c) Imprisonment A disability can toll the running of the statute of limitations only if the disability exists at the time that the adverse possession starts. The adverse possession period will begin once the disability ends.

Disability

Debt falls into default, grounds for mortgagee to foreclose. To avoid the expense and hassle or foreclosure, mortgagor will issue to mortgagee deed in lieu of foreclosure. Junior lienholders are unaffected. A deed in lieu takes subject to all mortgages on the property.

Discharge of Debt and Mortgage Deed in lieu of Foreclosure

In federal court, the discoverability of information is dictated by five criteria: Relevance, Privilege, Work Product, Undue Burden, and Experts. One way to remember these criteria is through the sentence: "Discovery: For when you Really Want Private Unknown Evidence."

Discovery Scope (a.k.a. What You Can Get If You Ask For It) (Rule 26(b))

Even if a party seeks information that is relevant, not work product, and not privileged, the information may still be undiscoverable if the request imposes an undue burden on the party from whom the information is sought. An undue burden exists in any of the following three circumstances: (a) The discovery sought is unreasonably cumulative or can be obtained from a less burdensome source or in a less burdensome way. (b) The party seeking the discovery has already had ample opportunity to obtain the information. (c) The burden or expense of the proposed discovery outweighs its benefits, considering the nature of the evidence sought, amount in controversy, and the parties' resources.

Discovery Undue Burden

Where the testimony is reliant on the writing, not on personal knowledge.

Document-dependent testimony:

The double jeopardy clause is intended to prevent undue harassment and expense by eliminating the risk of a defendant being placed in jeopardy twice for the same offense. Applies to the states through the Due Process Clause of the Fourteenth Amendment. When Jeopardy Attaches - When a defendant moves to dismiss a charge based on a violation of double jeopardy, she must establish she had been in jeopardy for the same offense by the same soveireign previously. Being previously charged is insufficient; the defendant must prove jeopardy had "attached" previously: a. In a non-jury trial, jeopardy attaches when the first witness is called and sworn. b. In a jury trial, jeopardy attaches when the jury is impaneled and sworn. When a grand jury fails to indict a target or a charge is dismissed prior to the jeopardy attachment point, jeopardy has never attached and that target may again be the subject of a grand jury investigation for the same offense or the charge may be brought again.

Double jeopardy

Police use of animals trained to detect only contraband does not qualify as a search (unless the police commit an investigatory trespass to get the animal to the location of detection.)

Drug sniffing dog

The 14th Amendment Due Process Clause allows the Bill of Rights to be invoked against the states whereas the Due Process Clause of the Fifth Amendment applies directly to the federal government. However, both offer the following kinds of protection: (1) Procedural Due Process (2) Substantive Due Process

Due Process Clause

If the demand is due to increased burden caused by unanticipated circumstances, there is no duress. EXAMPLE: The sailors' demand for additional compensation in response to an unanticipated expansion of their workload due to faulty fishing nets would be a good-faith demand.

Duress -- Distinguish a bad-faith threat of breach of contract from a good-faith demand

Enact military draft and selective service systems (this is true during peacetime as well) Initiate wage, price, and rent control of the civilian economy during wartime has been sustained. Exclude civilians from certain restricted areas

During wartime, Congress has the power to:

If a co-tenant is denied such possession they can bring suit for damages and/or ejectment.

Each co-tenant is entitled to possess the whole property.

If someone actually, openly, notoriously and exclusively uses land with hostile intent for the statutory period, it will create an easement by prescription.

Easement By Prescription (Adverse Possession)

Four Requirements: (1) Common ownership of dominant and servient estate prior to severance; (2) Prior use or quasi-easement; (3) Use was apparent or could be discovered upon a reasonable inspection; and (4) Reasonable necessity

Easement Implied by Prior Use

Benefits a parcel of land, has a dominant estate.

Easement appurtenant:

Generally, the prosecution must prove the following elements: (1) actus reus (a guilty mind); (2) mens rea (a guilty mind); (3) concurrence in time and between the act and the requisite mental state; (4) causation; and (5) some (but not most) crimes require the occurrence of a result for the crime to be complete (i.e. homicide crimes require that the victim die)

Elements of Crimes

(1) Voluntary act (2) Intent (3) Causation (4) Harm (5) No privilege or defense

Elements of Intentional Torts Checklist:

Recall from above that there are rare instances in which the success or failure of a state law claim depends on a question of federal law. When a federal court hears this type of case, the court simply applies state law to the issues pertaining to state law and federal law to the issues pertaining to the federal question.

Embedded Federal Question Cases

Suppose a person presented with a request for discovery (or, for non-parties, a subpoena) responds but refuses to answer certain questions or provide certain documents, citing privilege or some other excuse. What is the requesting party to do? The Rules dictate the following process. Motion to Compel Sanctions

Enforcement (a.k.a. What to Do When You Don't Get What You Asked For) If they sort of comply

The judge may hold hearings to ascertain the appropriate amount of damages or any other matter the judge deems appropriate.

Entry by the Court - Hearings

If the defendant is a minor or incompetent person, the court will issue a judgment only if the defendant is: represented by a guard

Entry by the Court - Minor or Incompetent Person

If the plaintiff's claim is for a "sum certain" (or a sum that can be made certain by computation), and the plaintiff requests the default judgment, the clerk must enter a default judgment and assess damages and costs against the defendant. Clerks may not enter default judgments against minors or incompetent persons.

Entry of Default by Clerk

If the clerk cannot enter a default judgment, it must be entered by the court. The court will not issue the judgment automatically; the plaintiff must make an application to the court The judge may hold hearings to ascertain the appropriate amount of damages or any other matter the judge deems appropriate. If the defendant is a minor or incompetent person, the court will issue a judgment only if the defendant is: represented by a guard .

Entry of Default by the Court

If a valid federal statute or constitutional provision is on point, the federal court must apply the relevant provision. Validity On Point - it clearly and specifically answers the question in dispute between the parties

Erie Analysis Step 1: Do What Congress or the Constitution Says

A condition will not defeat relation back doctrine. Original person (in escrow) gets it if condition is fulfilled. HOWEVER, The more conditions the grantor places on the conveyance, the more likely the conditioned conveyance will fail.

Escrow - When the grantor hands the deed to the third party and places conditions on the delivery, it gives rise to concerns regarding a situation where the grantor transfers the property to someone else before the condition occurs.

. If grantor gives a deed to third party, tells them to deliver the deed to grantee and it takes a week, when the third person does give the deed to the grantee, the date of conveyance relates back to the date that the grantor handed the deed to the third person. .

Escrow Relation-back doctrine

(a) to be used directly for religious instruction; or (b) to religious secondary schools even for the salaries of teachers of secular subjects because of the risk of "excessive government entanglement". .

Establishment Clause Government Aid to Religious Schools The state cannot give money:

THINK - the Scientology Rule The Supreme Court has upheld the validity of a property tax exemption for religious institutions if treated the same as other non-profits. A tax exemption from sales and use taxes available only for the sale of religious magazines and books violates the Establishment Clause as an endorsement of religion.

Establishment Clause Tax Deductions for Religious Institutions

Contrary to public opinion, honesty and decency really do matter in litigation. In federal court, Federal Rule of Civil Procedure 11 addresses these issues.

Ethical Obligations (Rule 11)

a. At the request of a party, the court shall: order witnesses excluded, so that they cannot hear testimony of other witnesses b. Purpose: To preserve the integrity of the witness's testimony, to prevent fabrication or collusion, or to protect child witnesses. c. This rule does not authorize exclusion of: (1) a party or party's representatives (2) a person whose presence is essential (i.e. expert) (3) persons exempted by statute (victim of a crime)

Examination of Witnesses Exclusion/Sequestration of Witnesses (Rule 615)

Mistrial; hold witness in contempt who remains in the courtroom; complaining party must show > harmless error- judicial error that does not rise to the level of necessitating a new trial

Examination of Witnesses Exclusion/Sequestration of Witnesses (Rule 615) Remedy if the court fails to exclude

Under this rule, a prior inconsistent statement (PINS) is NOT "sworn" and is admissible ONLY to impeach. This rule differs from FRE 801, where PINS comes in for its truth. PINS may be oral or written. Its contents need not be shown to the witness at the time, but one request must be shown to opposing counsel If the prior statement was not given under oath, it may ONLY be used for impeachment, such as a police report in a domestic violence case. NOTE: A party cannot call a witness solely to impeach that witness with a prior inconsistent statement.

Examination of Witnesses Impeachment Prior Inconsistent Statement of Witness (Rule 613)

When a party acts in bad-faith so as to prevent the condition, that party's performance obligation will not be discharged.

Excusing Failed Express Conditions Bad faith conduct

a. Treaty Power b. Executive Agreements

Executive Power International Affairs

A party desiring a jury trial must file with the court and serve on the other parties a written demand for a jury trial. The demand must be filed no later than 14 days after the last pleading directed to the [jury-eligible] issue is filed. Remember that "pleadings" is a term of art in the Federal Rules; they include mainly complaints and answers, but also includes a reply to an answer, if the court permits it.

Exercising the Right to a Jury - Demand

If a written demand is not timely filed and served, the right to a trial by jury is forfeited.

Exercising the Right to a Jury - Waiver

Any party can exercise the right to a jury trial. Thus, if a suit involves ten parties and only one party wants a jury trial, that party can force the other nine parties to try the entire suit to a jury.

Exercising the Right to a Jury - Who can exercise the right?

A writing must satisfy the Statute of Frauds

Express Creation of Easement

1. Extortion, commonly called blackmail, is: obtaining property with the threat of future harm a. Remember, obtaining property by threat of present harm is most likely robbery. 2. Some statutes consider the crime complete upon the making of the threats with the specific intent to obtain money or property, while other statutes require the threats to actually cause the victim to part with his property.

Extortion

requested by a party and supplied with the necessary information

FRE 201 judicial notice is MANDATORY if:

State laws prohibiting interracial marriages or interracial cohabitation are unconstitutional. They facially discriminate on the basis of race.

Facial race discrimination

If defendant would have committed the target offense had the facts (except the mistaken belief that the conduct is illegal) been as she believed them to be, defendant is guilty of attempt even if it was factually impossible to complete the crime.

Factual impossibility (of attempt)

Failure to state a claim upon which relief can be granted is a defense to a legal claim. It means that the claimant has failed to present sufficient facts which, if taken as true, would indicate that a violation of law had occurred or that the claimant was entitled to a legal remedy. A court assessing a motion to dismiss always assumes the claimant's allegations are true. The claimant's allegations must be "plausible" to survive this type of motion to dismiss. Claimant is not merely guessing that the defendant committed a wrong.

Failure to state a claim upon which relief can be granted

A false assertion of authority is the same as false imprisonment.

False arrest:

Requirement of materiality: The mistaken facts must significantly impact the value of the transaction to one or both parties Unilateral v. Mutual mistake

Faulty Assumptions regarding Present Facts: Mistake

Article III, section 2, limits the jurisdiction of federal courts to "cases" and "controversies." A case or controversy is a real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree of a conclusive character.

Federal Court System Case or Controversy

A political question is a matter assigned to another branch by the constitution or incapable of a judicial answer. (a) Something in the constitution suggests that ultimate decision-making authority is given to another governmental actor; (b) The required decision is political rather than legal in character. EXAM TIP: Foreign affairs is a frequently tested political question topic.

Federal Court System No Advisory Opinions Political Questions

(1) Occurs expressly whenever the holder of the privilege voluntarily discloses the privileged info. (2) Can be implied by failure to timely object to testimony.

Fifth Amendment Privilege Against Self-Incrimination Waiver of Privilege

a. Determine how much rent the landlord can sue for. b. Determine whether the tenant has defenses they can raise as to why they should not be obligated to pay that rent.

Fight over Rent

The metaphor of the "default rule": Judges use default rules to fill in gaps when the contract doesn't address the matter, but parties are free to set those default rules aside by contracting otherwise. In the UCC, warranties act as default rules which parties are free to contract around.

Filling in the Gaps with Default Provisions - what do default provisions do?

A law which regulates conduct, creating an incidental burden on speech, is allowable if: (a) the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression; and (b) the incidental restriction on speech is no greater than is necessary to serve the interest

First Amendment Conduct Regulation

A regulation which relates to unprotected speech only must pass the rational basis test. Unprotected speech includes: 1) Speech that advocates violence or unlawful action. 2) Fighting words: 3) Hostile audience speech: 4) Obscene speech; and 5) Defamatory speech.

First Amendment Content-Based Discrimination Unprotected and low-value Speech - level of scrutiny

Possibility of reverter automatically kicks in and the land goes back to the grantor.

Possibility of Reverter - upon the happening of the event

Governmental regulations must be drawn "with narrow specificity" and not vague. The following statutes have been ruled "void for vagueness" under due process inquiries: (1) a statute making it a crime to treat the flag contemptuously; and (2) a state law that denies a government job to people who are subversive.

First Amendment Vagueness

Deliberation is a rational decision to kill. Voluntary intoxication or diminished capacity may disable the ability to think rationally and prevent proof of deliberation. EXAM TIP: Deliberation requires proof beyond a reasonable doubt that the D made a deliberate decision to kill, not just a deliberate decision to hurt someone.

First Degree Murder Deliberation

published defamatory material concerning plaintiff that caused reputational damage

For a defamation action plaintiff must establish that defendant:

For discrimination by state governments, usually the Equal Protection Clause of the 14th Amendment will apply unless: (1) the state is discriminating against out of state business interests or corporations. For that, the Due Process Clause might apply; or (2) the state is discriminating against out-of-staters in general. For that, the Privileges and Immunities Clause of Article 4 might apply. (These are tourists or migrants.) EXAM TIP: The Privileges and Immunities Clause of the 14th Amendment is frequently a wrong answer on the MBE. However, t it may be a right answer with regard to the right to travel to another state and make that state your home

For discrimination by state governments, usually the Equal Protection Clause of the 14th Amendment will apply unless:

(1) An acceleration clause makes the entire debt due on the happening of an event, such as default or sale. (2) Such clauses are generally upheld.

Foreclosure Remedies on Default Acceleration

How debtor responds to foreclosure—redemption will stop foreclosure. Paying off debt or, in many jurisdictions, by bringing loan current (all payments due and fees). But, mortgagees can stop this with acceleration clause (i.e., saying all due when default). (2) Equitable Right of Redemption (3) Statutory Right of Redemption

Foreclosure Remedies on Default Debtor's remedy is redemption.

A deficiency judgment is: a situation in which foreclosure sale raises less money than the amount of the outstanding debt. The debtor may obtain a deficiency judgment which is the amount of the debt that was not retired at the foreclosure sale. EXAMPLE: Creditor has $100,000 mortgage on a piece of property. $100,000 debt falls into default, creditor forecloses. $80,000 is raised and paid against the debt. Creditor can get a deficiency judgment for the $20,000 not retired at the foreclosure sale. Senior interests are unaffected by junior interest foreclosures. Only junior interests are discharged provided they are properly notified and allowed to participate.

Foreclosure - Deficiency Judgment

A person's religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious belief. The government may not determine the truth or falsity of a person's religious beliefs. The government may determine a person's sincerity in his or her claim of religious belief. Where an individual's conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is neutral in respect to religion and is of general applicability.

Free Exercise Clause

Requires a desire to do the prohibited act (though not necessarily a desire for the criminal result). Generally includes recklessness or criminal negligence. This is the "catch-all" if specific intent is not required. General intent may be nullified by an honest and reasonable mistake of fact.

General Intent Nullification

(1) Battery (2) Rape (3) Kidnapping (4) False Imprisonment (5) Involuntary Manslaughter (6) Depraved Heart Murder

General Intent Crimes

Intangible (pain and suffering)

General damages:

Occurs where a promise has been made but the promisee has neither promised nor given anything in return to the promisor, leaving the consideration unsatisfied. A gratuitous promise is a promise to make a gift. Such a promise lacks consideration and therefore is unenforceable. EXCEPTION -- Executed Gifts Gratuitous transfers (gifts that have been executed) are legally binding and enforceable What does it take to "execute" a gift? (a) Present intent to bestow the gift (b) Actual or symbolic delivery of the gift

Gratuitous Promises and Executed Gifts

A promisee that reasonably relies to his detriment on a gratuitous promise may be able to enforce that promise, even though consideration is lacking. (1) Requirement #1: *A promise* The promise must be specific to be relied upon. (2) Requirement #2: *Foreseeable reliance* Under the circumstances, the promisee's reliance would be expected. (3) Requirement #3: *Actual reliance* If the promisee was already going to take the course of action before the promise was made, they did not actually rely upon the promise. (4) Requirement #4: *Injustice without enforcement*

Gratuitous Promises and Promissory Estoppel

A writ of habeas corpus is a civil cause of action brought against the custodian of a person currently in confinement, challenging that confinement on Constitutional grounds. The writ may only be made on a limited number of Constitutional grounds.

Habeus Corpus

a. Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity with the habit. b. A repeated response to a particular situation. c. Admissible in the form of opinion or specific acts. d. Look for these kinds of words: always, automatically, regularly, instinctively, without fail, invariably habitually (1) But generally not words like: usually, often, frequently e. Negative habit evidence is admissible: "X never smokes or drinks." f. Issue: May a party testify to his own particular trait? Yes. "I always drive within the speed limit, or I never use drugs."

Habit: Routine Practice

Three ways to authenticate: (1) layperson with familiarity (combination of 602 and 701) Familiarity is a weight of the evidence issue. Caveat: Familiarity cannot be acquired for purposes of litigation (2) comparison by an expert (3) comparison by the trier of fact (jury or judge)

Handwriting

Varies based on the kind of intentional tort. Some intentional torts require proof of separate harm, some do not. Ways to establish harm in intentional torts: (1) Establishing elements of the tort (2) Prove specific injury

Harm

If a jury hears the offer of proof, and the error is not prejudicial to the outcome of the case, then the harmless error rule applies. An error is harmless if the jury would have reached the same verdict even if the error did not occur no substantial rights are affected.

Harmless Error Rule

Authorized admission: A statement by a party's agent or representative. Agency can be express or implied.

Hearsay Exemptions Statement by a Party Opponent (SPO's) (Formerly Admission) Authorized admission

Effect on the Listener (notice, motive, etc.): We are not concerned with the declarant, but the fact that the defendant heard the declarant's words. Verbal Acts: The words themselves can give rise to a cause of action. These are words that have: (1) ILS: independent legal significance, or (2) LOF: contain legally operative facts (1) Transactional words: the words of a contract, deed, will, judgment (2) Tortious words: actual defamatory words themselves in a libel/slander action

Hearsay Evidence Not Offered for Its Truth (Not Hearsay)

Direct statements by a party: A statement of a party offered against him by his opponent Characteristics: (a) can be a statement of fact or opinion; (b) DOES NOT have to be against interest when made. 1) Think: Admissions are like emissions from a car. Anything from the tailpipe suffices. Does not have to be a true admission of guilt, fault, or liability (c) personal knowledge not required (I guess it was my fault—after I gave you my car and the brakes failed). Just required to be said BY me, and used AGAINST me.

Hearsay Exemptions Statement by a Party Opponent (SPO's) (Formerly Admission) Direct statement by a party

1. Statement by a Party Opponent (SPO's) (Formerly Admission) 2. Co-conspirator's Statements 3. Prior Statements: Three types of prior statements defined as hearsay exclusions.

Hearsay Exemptions (Rule 801(d))

In hybrid cases, which involve both the sale of goods and a services contract, the question arises as to which source of contract law should apply. We determine which law applies by *the predominant purpose* of the transaction. Bob purchases a car stereo, and the mechanic also installs it. - main purpose = car stereo A contract with an artist to paint a portrait is clearly a service. - main purpose = service of the artist **Majority rule** (a) To determine the predominant purpose of a contract, the *following factors are used*: 1) Factor #1: the *language of the K* - does the contract mention good or service? 2) Factor #2: the *nature of the supplier's business* 3) Factor #3: the *relative value of the goods vs. the service* - which costs more, the good or the service itself? **Minority rule** - apply the UCC to the goods portion of the contract, and the common law to the service portion of the contract

Hybrid sales of goods and services contracts - UCC or common law

A police officer is justified in requesting a suspect's name as identification during a Terry stop as long as the request has an immediate relation to the purpose of the stop.

IDs during Terry Stops

(1) The opportunity to view the criminal at the scene; (2) The witness's degree of attention; (3) The accuracy of the witness's description; (4) The degree of certainty of the witness; and (5) The time interval between the crime and the identification (the longer the interval, the less reliable).

Identifications of a Defendant - The Due Process Standard The following factors are considered to assess whether an unnecessarily suggestive procedure results in an unreliable identification:

Informer = someone funneling information vital and relevant to law enforcement Both the U.S. and the individual states can refuse to disclose the identity of an informer The informant cannot invoke this privilege. A newsperson has no First Amendment privilege to refuse to disclose the identity of his sources. HOWEVER, states can provide shield laws to afford such a privilege.

Identity of Informer

The party seeking to enforce the contract may be able to use another theory of enforcement to protect its interests, such as promissory estoppel or quasi-contract.

If Statute of Frauds fails -- Is Alternative Enforcement Available?

...the unlawful seizure is a poison tree that taints the consent and any evidence to which it may lead.

If consent is obtained following an unlawful seizure...

Emotional Distress Wrongful Conception, Wrongful Birth, Wrongful Life

If the plaintiff's injury is not personal injury or property damage, duty issues arise. Types of Damages

Rational basis review applies to discrimination against illegal aliens. However, states cannot enact their own immigration policy. That is reserved for the federal government.

Illegal Aliens Level of Scrutiny

An impleader claim is a claim brought by a party defending a claim. Unlike those claims, however, an impleader claim is brought against somebody not yet involved in the lawsuit and may only be brought if the claim alleges that the third party is responsible for some or all of the liability facing the defending party. The classic impleader claims are: (1) contribution claims (claims against a joint tortfeasor) and (2) indemnity claims (claims against an insurer). IMPLEADER = IMPLORE (imploring them to join the lawsuit)

Impleader Claims (Rule 14)

After a party has been impleaded into a lawsuit, the party may bring claims of its own against other parties or implead additional parties. Additionally, the original plaintiff in the suit may file a claim against the impleaded defendant provided the claim relates to one of the plaintiff's original claims.

Impleader Claims (Rule 14) Subsequent Claims

Modern courts do not police the equivalence of the exchange for purposes of applying the consideration doctrine. Instead, a party may be able to defeat the enforcement of an excessively one-sided bargain through the defense of unconscionability. EXCEPTION: in some jurisdictions, an element of securing specific performance is showing that there was a fair or adequate exchange.

Inadequacy of Consideration

The Bill of Rights can be invoked against the federal government, also known as the first ten amendments. If the federal government is discriminating, the Due Process Clause of the Fifth Amendment should be invoked.

Individual RIghts Which Constitutional Provision Should Be Relied On? (OL V. A.) Against the federal government

A plea and any statements made during plea negotiations by a defendant to a prosecutor in a criminal proceeding will be: inadmissible as against the defendant in a later proceeding This rule applies to: (a) pleas of guilty later withdrawn; (b) pleas of nolo contendere (no contest); and (c) offers to plead guilty (i.e., any statements by defendant during plea negotiations). It DOES NOT apply to: Statements made to the police Variation: If defendant pleads guilty (i.e., an actual guilty plea = waiver of the right to a jury trial), the guilty plea may be admitted substantively as a statement by party opponent in a subsequent civil or criminal case, or to impeach, if defendant testifies

Inadmissibility of Pleas, Plea Discussions, and Related Statements (Rule 410)

Incest is the crime of sexual relations between individuals who are closely related to one another. The degree of relationship required varies by state.

Incest

"Incomplete" crimes. All inchoate offenses require the same mens rea: *specific intent* (purpose) to commit target offense 1. *Solicitation*: The crime of trying to get someone else to commit your crime-the key is: the *communication* 2. *Attempt*: The crime of "almost" committing a crime-key is: proof defendant went *beyond preparation and initiated perpetration* 3. *Conspiracy*: The crime of planning to commit crime with someone else-the key is: proof defendant *did more than think about the crime and began planning*

Inchoate Crimes

The state action requirement: the plaintiff must first show that there is governmental action. Constitutional rights can be violated only by governmental actors, not by private actors with the exception of the 13th Amendment and the specific situations below. The 13th Amendment does not have a state action requirement. It protects from actions of private individuals.

Individual Rights State Action versus Private Action

State action can be found in the actions of private actors under: (1) the public function theory: where a private entity is carrying on activities traditionally performed by the government (2) the significant state involvement theory: where the private party's action is closely encouraged and supported by the state

Individual Rights There are two exceptions to the rule that constitutional rights can be violated only by governmental action.

At common law, involves fraud or dishonesty.

Infamous

An inherently dangerous felony is one in which the inevitable secondary effect of the felony is serious risk to human life. A majority of jurisdictions apply an abstract test which requires the felony to be dangerous in all contexts. A minority of jurisdictions apply a contextual test, which considers the manner of commission in determining inherent dangerousness. The following felonies almost always satisfy these requirements (BARRK): B: Burglary, A: Arson, R: Rape, R: Robbery, K: Kidnapping

Inherently dangerous felonies

Plaintiff must prove: a. False statement b. Actual malice or that the defendant knew the statement was false or recklessly disregarded truth or falsity c. Made to another or published d. Causing specific economic injury to the plaintiff An injurious falsehood is a false statement made to another by defendant that causes economic injury to plaintiff. The false statement need not be defamatory, need not personally relate to plaintiff, and need not cause others to shun plaintiff's company. Defendant must intend to cause others not to do business with plaintiff or to otherwise interfere with plaintiff's relations with others to plaintiff's economic disadvantage. In many jurisdictions, such motives will be found upon proof that defendant knowingly made the false statement or was reckless with regard to its truth or falsity.

Injurious Falsehood (Trade Disparagement)

Buyer buys land and agrees to pay off purchase price in installments. Buyer takes possession today, seller holds on to the deed until the debt is entirely paid. Usually time is of the essence in these types of contracts. EXAMPLE: Buyer agrees to purchase land for $100,000 and agrees to pay the purchase price of ten monthly installments of $10,000. Buyer makes the first several payments on time, and then is late with a payment.

Installment Land-Sale Contract

If time is of the essence, seller can declare buyer breached and seller keeps land and all payments to date. Harsh result. Courts look to get around, see if time really of essence (i.e. was it just a boilerplate K term?) If buyer was previously late and seller accepted, courts will waive the time-is-of-essence clause. EXAMPLE: A person with bad credit wants to own a house. He could get a rent-to-own lease, which would give him the option to purchase the house at the end of the lease, but he would never be the owner unless he exercises the option. Instead, he decides on an installment land-sale contract, where he will become the equitable owner right away as he makes payments over time. His seller provides the financing by agreeing to the installment contract.

Installment Land-Sale Contract - What happens if default?

Defendant desires that his acts cause certain consequences or knows that his acts are substantially certain to produce those consequences.

Intent

For most intentional torts, intent is established if the defendant either: (1) Desires that his act will cause the harmful result described by the tort; or (2) Knows that it is substantially certain that such a result will occur.

Intent

Intentional infliction of emotional distress arises where the defendant engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes plaintiff severe emotional distress. Elements: (1) Intent or recklessness (2) Extreme and outrageous conduct (3) Causation (4) Severe emotional distress

Intentional Infliction of Emotional Distress

Plaintiff was an emotional basket case before the defendant did anything. There is a problem with showing causation. Even though defendant engaged in outrageous conduct and plaintiff suffered severe emotional distress, it could not be shown that the reason for the distress was due to the defendant's conduct.

Intentional Infliction of Emotional Distress Causation issue that might arise:

A defendant interferes with the prospective economic advantage of the plaintiff where he (1) knew of the the prospective economic advantage and (2) acted to interfere with it for improper motives. This tort protects the probable expectancy interests of future contractual relations of a party.

Interference with Prospective Economic Advantage

a. Sovereign Immunity: The federal government cannot be sued without its consent. b. Supremacy Clause: Federal law is supreme over state law. c. Taxation of the federal government by a state: The federal government and its agencies and instrumentalities are immune from state taxation and state regulation that would interfere with their performance of federal functions.

Intergovernmental Immunities Immunity of Federal Government Lawsuits, Laws, Taxes

As a general rule, the 11th Amendment: Congress cannot create a private cause of action for money damages against a state unless is using its enforcement powers. Individuals may seek injunctive relief. A state enjoys immunity from federal taxation if the tax is applied to either: (1) unique state activities; or (2) essential governmental functions.

Intergovernmental Immunities Immunity of State Governments

The federal government cannot force the states to act in their sovereign capacities (i.e., legislate or enforce laws) Federal g'vt can't force states to (1) pass a law (2) enforce a federal law The 10th Amendment is frequently a "red herring" wrong answer choice EXCEPT when the facts show the federal government "commanding" the states. EXAM TIP: It does not matter if a state is happy to obey the federal government regarding legislation or enforcement of a law. It is still unconstitutional. EXAM TIP: The spending clause can often be used here instead to achieve the same result. EXAM TIP: It is not commandeering to forbid the states from doing something. This is even true if the prohibition extends to state sovereign functions.

Intergovernmental Immunities Immunity of State Governments Anti-Commandeering Doctrine:

If a suspect invokes the Miranda right to counsel, questioning must cease immediately, and may not be re-initiated unless: 1) An attorney is present during the interrogation, or 2) Defendant re-initiates the contact with police Two weeks after the suspect is returned to his normal environment police may re-initiate questioning, but must first obtain a fresh Miranda waiver. A Miranda invocation of either right is not offense specific. That means that these "re-initiation" rules apply for any offense. This is a critical distinction between the Miranda right to counsel and the Sixth Amendment right to counsel. Because it is non-offense specific, the Miranda right is more protective.

Invoking Miranda right to counsel -

A defendant may move for involuntary dismissal if: (a) Plaintiff fails to prosecute their case; (b) Plaintiff refuses to comply with a court order; or, (c) Plaintiff refuses to comply with the Federal Rules of Civil Procedure. An involuntary dismissal in these circumstances is always issued with prejudice.

Involuntary Dismissals

Under Article III, section 2, the Supreme Court has original jurisdiction where parties include: (a) ambassadors, other public ministers and consuls (foreign diplomats); and (b) states. Appellate jurisdiction exists where the federal constitution or a federal law are at issue.

Jurisdiction of the Supreme Court Original v. Appellate

While claim preclusion prevents re-litigation of claims, iIssue preclusion or collateral estoppel bars re-litigation of issues, regardless of party identity. An "issue" is narrower than a claim - the litigation of a single claim may involve the determination of several different issues. L E V I - the jeans will give u issue Elements: (a) The issue was litigated and determined in a prior action, (b) The issue was essential to the judgment of the prior action, (c) The prior suit ended in a valid final judgment on the merits, (d) The party against whom preclusion is asserted must have had a full and fair opportunity and incentive to litigate the issue in the prior action.

Issue Preclusion / Collateral Estoppel

The law of joinder is about the size of a lawsuit. The minimum size of a lawsuit is one plaintiff versus one defendant involving one claim. But what is the maximum size? (for claims and parties?) The sky is the limit, subject to some rules.

Joinder

A juror may not testify as to the manner in which the jury reached its decision. Affidavits by jurors are also excluded. This rule includes: (a) any statements made during deliberations (b) thought processes by which jurors reached their decisions, or (c) votes taken to reach the verdict

Juror as Witness Inquiry into the validity of a verdict or indictment (Rule 606(b))

During voir dire, potential jurors are questioned and evaluated by the judge and parties to determine their fitness to serve. A juror can be struck during voir dire in the following ways-- 1. Challenges for Cause 2. Peremptory Challenge

Jury Composition Selection

Juries can be composed of six to twelve members

Jury Composition Size

Unless the parties stipulate otherwise, jury verdicts must be unanimous.

Jury Verdicts - Unanimity

Unlawful restraint of a person's liberty by force or show of force. Under common law - send the victim into another country. Under modern law - taken to another location or concealed. A majority of jurisdictions require some movement of the victim (asportation). If the victim is restrained but is not moved to some other location, it is not kidnapping. A minority jurisdictions hold that unlawful restraint alone can prove kidnapping.

Kidnapping

(1) If, at the time of taking, the defendant intends to return the property to the victim unconditionally and within a reasonable time, there is no intent to permanently deprive. (2) The defendant must have the ability to return the property, even is something unanticipated stops the actual return of the property. (3) Where a defendant, at the time of the taking, has a good-faith belief that he is entitled to possession, there is no intent to permanently deprive, even if that belief is both incorrect and unreasonable. (4) Where a defendant recklessly exposes property to loss or deals with property in a manner involving substantial risk of loss, the intent to permanently deprive is satisfied. (5) The intent to keep, destroy, or hold property for ransom will suffice to prove this element. (6) If defendant has the intent to replace the item it negates intent to permanently deprive

Larceny Intent to Permanently Deprive (5)

Because the property must be "of another," a good-faith claim of right is a valid defense. Under certain circumstances, an owner can be guilty of larceny of his own property, such as when another is in lawful possession of the owner's property.

Larceny "Of Another"

(balancing of factors): Evidence must be "helpful" in deciding the case. Public policy considerations are balanced here: SRM, OFFERS TO SETTLE, OFFERS TO PAY MEDS

Legal relevance

a. "lack of consideration" b. "no consideration" c. "not supported by consideration" d. "insufficient consideration"

Legal synonyms for "want of consideration":

Where the writing has independent legal significance (i.e., the writing itself creates or destroys a legal relationship). (a) Examples: 1) a contract; 2) a will; 3) a deed; 4) a mortgage; 5) a lease; 6) a driver's license; 7) a movie in an obscenity action; 8) a photograph in a pornography action; 9) written libel; 10) a divorce decree.

Legally operative documents

Anytime a grantee has less than a fee estate they cannot harm the property at the expense of the person who will hold it after them, meaning they cannot commit waste.

Less than a fee estate and Waste

If the delegation was for consideration, (1) the delegator has a breach of contract action against the delegatee for non-performance. (2) the third party obligor can also bring an action against the delegatee as an intended third party beneficiary to the delegation contract

Liability of the Delegatee

The parties' obligations will depend on which of the offerees' communications reaches the offeror first. i) If the acceptance reaches the offeror first: there is a contract by virtue of a communicated acceptance. ii) If the rejection reaches the offeror first: there is no contract and the power of acceptance has been terminated.

Mailbox rule Hard Case: What happens when an offeree dispatches two responses to an offer, the first purporting to reject the offer and the second purporting to accept it?

(1) The right of survivorship in the joint tenancy (2) Joint tenancy needs interest and possession. Tenancy in common needs unity of possession only.

Main differences between joint tenancy and tenancy in common:

If a missing party is indispensable, the court must dismiss the suit; if not, the court may adjudicate the case in the party's absence. To determine whether a missing party is indispensable, the court will consider: (1) the extent of prejudice to the missing party; (2) whether such prejudice can be lessened by shaping the relief in a particular way; and (3) whether the plaintiff, if the case is dismissed, will be able to find relief in another forum. The court's overarching goal is to see that the dispute be resolved with as little prejudice as possible to the missing party.

Mandatory Joinder (Rule 19) Step 3: If the necessary party cannot be joined, determine whether the necessary party is "indispensable."

In addition to actus reus, a criminal action requires a culpable state of mind to actuate the criminal act or omission. (EXCEPTION - Strict liability) 1. Purpose 2. Knowledge 3. Recklessness 4. Criminal Negligence Intent - specific and general Malice - express and implied

Mens Rea (guilty mind)

Under modern rules, a person lacks capacity to contract if he was mentally incompetent at the time of contracting. Incapacity defenses are available under both the common law and the UCC.

Mental Incompetence

a. Bias or Prejudice: Always material, never collateral; collateral matter rule does not apply to bias b. Sensory Defects (NO FRE Number) c. Prior Inconsistent Statements (FRE 613) d. Character: Four categories under Rules 608 and 609. (a) Felony conviction (b) Bad acts (c) Convictions bearing on truthfulness (d) Reputation/opinion

Methods of Impeachment

When an employee is under contract for a specified period of time and the employee breaches the contract by departing before the end of that period, a negative injunction will be available to prevent the employee from competing if the employee's services are *unique or extraordinary*. Although the presence of a specific contractual provision establishing exclusive employment during the period of time in question will aid the employer in securing a negative injunction, *most courts would imply such a term for the period of employment of the contract. *

Mid-Term Employment Relief

Although mistake or ignorance of the law is not a defense to a crime, mistake of law is a valid defense where a defendant relies in good faith upon an erroneous official statement of law contained in an administrative order or in an official interpretation by a public officer or department.

Mistake of Law

The Preexisting Duty Rule A promise to increase compensation for duties owed under an existing contract is an unenforceable modification to an existing contract, because there is no consideration offered for the modification. EXCEPTIONS: a) Mutual Modification b) Unforeseen Circumstances

Modification At Common Law

1. Sue in personam (sue on note) - going after the individual 2. Sue in rem (foreclose on land through mortgage document) - going after the property itself

Mortgage Creditor Remedies

Bank Lender Creditor receiving mortgage

Mortgagee

If a jury returns a verdict with damages that are "grossly excessive" or "shock the conscience," the court may, upon a motion, order a new trial. The court may also choose an amount of damages it considers appropriate and give the defendant the option of paying that amount or submitting to a new trial. Note that there is no remedy in federal court if the damages are grossly inadequate.

Motion for a New Trial Grounds Excessive Damages

If a party discovers evidence after the verdict that could not, with reasonable diligence, have been discovered before the verdict, a new trial is warranted as long as: (a) the evidence is not solely for the purpose of impeachment, and, (b) would likely change the result.

Motion for a New Trial Grounds Newly Discovered Evidence

A motion for a new trial must be filed within: 28 days of the entry of judgment

Motion for a New Trial Timing

If a party has multiple counterclaims, he may bring them all together regardless of whether they are related. Any claim that is related to the plaintiff's initial volley is compulsory and must be brought or else forfeited. These counterclaims create the same obligations for responding party (permissive/compulsory counter-counter-claims).

Multiple Counterclaims

Common law - victim had to be born Some states - extend criminal liability to fetus after first trimester

Murder - Human Being's Death

Courts will find a duty; once the governmental entity has undertaken to act it must do so non-negligently.

Negligence Duty When the defendant is a governmental entity Ministerial function

Contract provision that prevents one party from competing for a certain period of time or in a certain area. Although generally enforceable, such contracts may be deemed contrary to the public policy of promoting a citizen's freedom to work. *Consider the extent to which the non-compete provision imposes an unreasonable geographical barrier or duration upon the employee.*

Noncompete Agreements

Common carrier/passenger, innkeeper/guest, captain/passenger, seamen, drinking buddies (though this is a huge stretch)

Nonfeasance - Examples of special relationships of dependence

1) Recording acts protect subsequent bona fide purchasers (BFPs). a) Includes mortgagees (lenders). b) Does not include beneficiaries who take by gift or inheritance. c) Does not include adverse possessors.

Notice Statute - Protected Parties

Bona fide purchaser (BFP): purchases for value and takes without notice of any other claim Types of Notice 1) Actual notice is where you actually know something. What knowledge you actually possess. 2) Constructive notice comes through the recording acts. As soon as you record a deed, you give constructive notice to the world that the property is yours. 3) Inquiry notice arises from information that is learned or could have been learned that would lead a reasonable person to inquire further. Held to notice that reasonable person would have learned.

Notice Statute for Recording Acts

EITHER party may assert this defense - whether paying or performing. The reason for this is that the court shall play no role in enforcing such a contract and will leave the parties as they find them. EXCEPTION: Parties are not In pari delicto: Where one of the parties is much more egregiously in the wrong than the other party, it may be possible for the more innocent party to secure restitution of benefits conferred on the guiltier party. A contract that is subject to the defense of public policy is void if illegal and otherwise voidable at the option of the defending party.

Operation of the Defense of Public Policy

Majority of jurisdictions always allow parties to use parol evidence to explain or interpret ambiguous terms of a written contract.

Parol Evidence Rule - Purpose for Which Evidence is Introduced Purpose #1: To Explain or Interpret Terms of a Written Contract

Purpose #1: To Explain or Interpret Terms of a Written Contract Purpose #2: To Supplement Terms of a Written Contract Purpose #3: To Contradict Terms of a Written Contract

Parol Evidence Rule - Purposes for Which Evidence is Introduced

Landlord or tenant must give appropriate notice of intent to terminate. Appropriate notice must: (1) be in writing if the lease or state statute so specifies, otherwise it can be oral; and (2) be equal to the rental period up to a maximum of six months. EXAMPLE: One-month tenancy -> One-month notice. Three-month tenancy -> Three-months' notice. One-year tenancy -> Six-months' notice.

Periodic Tenancy Lease Termination

. Upon timely application and at the court's discretion, any person may be permitted to intervene in an action when the intervenor has a claim or defense that shares with the main action a common question of law or fact. .

Permissive Intervention

A possibility of reverter is not subject to the RAP because the grantor's right is already vested.

Possibility of Reverter - Rule Against Perpetuities (RAP)

Enforcement of employment contract provisions that prohibit post-employment competition against the employer have become a common source of negative injunctions. The validity of such non-compete clauses will depend on three factors or considerations: a) *Is there a significant business justification for enforcing post-employment restraints?* EXAMPLE: An employee with access to trade secrets and entrepreneurial knowledge. b) *Is the scope of the non-compete clause reasonable in duration and geographical reach?* The bigger the employee, the larger the geographical reach possible. c) *Is there an express non-compete provision?*

Post-Employment Relief

Renewed Motion for Judgment as a Matter of Law (Rule 50(b)) Motion for a New Trial (Rule 59) Motion for Relief From Judgment (Rule 60(b))

Post-Trial Motions

A power of termination is a future interest that can be created in the grantor when grantor attempts to create fee simple or a life estate subject to a condition subsequent. If some condition happens, the grantor can reenter and take estate.

Power of Termination (Right of Reentry)

In criminal cases, presumptions are rare and disfavored since if they are not rebutted, the result would be: a judgment as a Matter of Law (which violates Due Process and is unconstitutional)

Presumption Caveat in criminal cases:

If the state is trying to execute someone, it must provide due process of law.

Procedural Due Process What counts as life?

Public school officials only need reasonable grounds to justify a student search. Neither a warrant nor probable cause is required

Public Schools

(a) Almost never tested. (b) The person who records first prevails

Race Statute

Consent is determined objectively from the observable circumstances. A victim's subjective lack of consent will not suffice if the objective circumstances suggest that the defendant was unaware of the victim's lack of consent.

Rape - Modern Law Consent

the murder weapon - the gun, knife

Real evidence:

There is a strong presumption that first in time is first in right. (1) The first person to have a valid claim to property via adverse possession, contract, or deed is the one who presumptively owns the property. (2) Recording acts can change this by protecting subsequent purchasers. (3) Note that title based on adverse possession cannot be recorded. Need a quiet title judgment first, then title becomes recordable and marketable.

Recording Acts

Due process entitles a defendant to notice of the claims against him and an opportunity to respond to those claims. Service of process is one way that the notice requirement is satisfied, but it is not the only way. If a defendant is served with process, the defendant's constitutional right to notice has almost certainly been observed. The key is whether service of process was reasonably calculated to inform the defendant of the action against him.

Relationship Between Service and Constitutional Due Process

Thus, if a court has the power to assert PJ over a party, that power becomes active at the moment the defendant is served with process (or a waiver is filed with the court, if service is accomplished by a request for waiver). Note that where a plaintiff relies on tag to subject the defendant to personal jurisdiction, the court's PJ is both created and activated at the exact same moment.

Relationship Between Service and Personal Jurisdiction

If P sues multiple defendants and serves them with process at different times, the 30-day window for removal runs from the moment the final defendant is served. Thus, even if the first defendant served with process declines to remove the suit within 30 days of her service, she is entitled to join in removal if a later-served defendant elects to remove. Later service on other defendants does not, however, empower the first-served defendant to remove on her own accord; she may only join in a removal initiated by a later served defendant.

Removal - Multiple Defendants Served at Different Times:

A defendant may not remove a case if: (a) federal jurisdiction would be grounded only in diversity jurisdiction, and (b) the defendant is a citizen of the state where the plaintiff filed suit. EXCEPTION - Home State Defendant Rule

Removal Exception - Home State Defendant Rule

When ordered by a court to submit to such an examination, a party must do so. However, the examiner must prepare a report detailing the result of her examination and provide it to any party who requests it.

Requests for Mental or Physical Examination (Rule 35) Response

(a) For each allegation in the plaintiff's complaint, the defendant should specifically admit or deny the allegation. (b) If the defendant fails to deny an allegation, it is deemed admitted.

Responding to a Complaint - Admissions or Denials

Federal SMJ will always concern whether a plaintiff may file a claim in the federal court system, or must instead seek relief in a different court system (such as in state court). Thus, SMJ has nothing to do with the geographic location of the lawsuit. Location only matters to questions of personal jurisdiction and venue.

SMJ has nothing to do with the geographic location of the lawsuit.

If express easement states use, then that is only allowable use. Apart from that, an easement can be used to the extent that it is reasonably necessary to do so.

Scope of Easements

If a contract falls within the Statute of Frauds, then the general rule is: *the contract is unenforceable unless evidenced by a writing signed by the party against whom enforcement is sought.*

Second Question: Is the Statute of Frauds Satisfied?

Lien theory deemed to apply until default and then the title theory kicks in. The effect is that prior to default, mortgagor retains right to possessions, rents and profits. Upon default, mortgagee is entitled to possession, rents and profits.

Security Relationship Theories Intermediate theory

Mortgagee receives only lien on property, mortgagor retains rights to possess property AND rights to rents and profits from mortgaged property.

Security Relationship Theories Lien theory

Mortgagor retains possession, mortgagee has rights to rents and profits produced by mortgaged property. Mortgagor retains possession until default.

Security Relationship Theories Title theory

a. Lien theory b. Title theory c. Intermediate theory Duties: Person who has possession has duty to manage property in a reasonably prudent manner. Can't commit waste; if he does commit waste, can be sued by other party for damages or injunction.

Security Relationship Theories and duties

A person is seized when, as the result of government action: a reasonable person in his position would not feel *free to leave* or terminate the encounter A seizure occurs when the police *use physical force* to restrain a suspect, or when they make a *show of authority followed by submission*.

Seizure of Persons

- passes from grantee to grantee; most common EXAMPLE: "A to B so long as B completes law school by age 30. If B fails to do so, then to C." Shifts the property from grantee B to grantee C.

Shifting executory interest

For plaintiff to recover, he must show that the defendant was negligent for failing to discover and remedy the dangerous condition.

Slip-and-fall cases

1) suits between the spouses; 2) suits involving a child of either spouse (e.g., husband tried for sexual abuse of stepdaughter; wife may be compelled to testify). 3) Joint participation in a crime

Spousal Immunity (Testimonial) EXCEPTIONS

A statute that provides for civil liability supersedes the common law of torts. Majority - conclusive proof of breach of duty if statute violated Minority - raising a rebuttable presumption or prima facie evidence of breach of duty

Standard of Care: Statutory Negligence and Negligence Per Se

A Terry Frisk is a cursory protective search for weapons or some other instrumentality that creates an imminent danger to the officer or others in close proximity. A Terry Frisk is justified only by reasonable suspicion the suspect Is: armed and dangerous. Contrast from Terry Stop, which is justified by reasonable suspicion that "crime is afoot"

Terry SEARCH

A party can unilaterally amend a complaint within 21 days of filing it, or, if an answer or motion to dismiss has already been filed, within 21 days of that filing. A party can amend an answer within 21 days of filing it.

The Ability to Amend - as of right

Suppose a plaintiff files a complaint and then wants to change it? Can she do so? In some cases, she can amend her complaint unilaterally and in others she must obtain permission. Either way, she may also have to address potential statute of limitations issues. The Ability to Amend (1) As of Right (2) With Permission

The Complaint Amendments (Rule 15)

Whether an amendment has been filed within the statute of limitations depends on whether the amendment seeks to add a new claim or a new party. (Amendments that do not add new claims or parties, but merely correct errors or omissions in the complaint, will not implicate statute of limitations concerns.) (2) Amendments That Add New Claims (3) Amendments That Add New Parties

The Complaint Amendments and Statutes of Limitations

Majority rule: The mailbox rule is not applicable to option contracts and acceptance is only effective upon RECEIPT, not dispatch.

The Mailbox Rule and Option Contracts

The UCC governs contracts for "sales of goods". Alternative source is common law. If there is an issue to which the UCC is silent, common law governs.

The Uniform Commercial Code

Quitclaim deed Warranty deed (a) General warranty deed (b) Special warranty deed

The buyer must sue on the deed.--- Types of Deeds

(a) A brief cursory look in areas *within an automobile* where police have reasonable suspicion a person stopped will have immediate access to a weapon after being allowed back in the car. (b) A cursory sweep of the *interior of a home* when police enter the home to serve a warrant based on reasonable suspicion that others may be present and danger the officers.

The protective rationale for a Terry Frisk has been extended to:

(1) Clause must be about compensation rather than punishment (2) Clause must be reasonable at the time of contracting in relation to the anticipated harm An unreasonable clause is one that assigns damages for situations where damages would be difficult to calculate or prove (speculative) (3) Clause is reasonable in relation to actual loss due to the breach

The test for determining whether a clause in a particular contract is a valid liquidated damages

Larceny requires that you obtain possession unlawfully. False pretenses requires you obtain title falsely. Embezzlement requires that you convert (misuse) property entrusted to you.

Theft Key Distinctions

A third means of satisfying the UCC Statute of Frauds occurs when a party admits in his pleading, testimony or otherwise in court that a K for sale was made The contract is only enforceable: up to the quantity admitted

There are five ways to satisfy the UCC Statute of Frauds:The third way: The InCourt Admission (aka, "Coming Clean is Good for the Soul but Not for the Pocket Book")

1. Animals 2. Abnormally dangerous activities. 3. Defective products.

Three Contexts in Which Strict Liability Arises:

EXAMPLE: "A to B, but if B ever tries to sell the property, then the property will revert to A." Total restraint in a fee simple interest are not valid. Total restraint on less than a fee will be upheld if reasonable

Total Restraint on selling land

a. Ademption b. Exoneration c. Lapse

Transfer by Operation of Law and Will Inheriting Real Property

If the grantee has assumed the mortgage, then the grantee is primarily liable and the grantor is secondarily liable.

Transfers by Mortgagor - who's on the hook for mortgage? Rights of the grantor against the grantee if there has been an assumption of the mortgage b/c of ambiguous language

1. Mortgage - document that represents an interest in land 2. Note aka Promissory Note - represents the personal obligation of the debtor to repay the debt Generally, the mortgage is deemed to follow the note (stronger than mortgage doc).

Two instruments that make up a mortgage:

*If the license is coupled with an interest.* Personal property located on the licensor's property that the licensee purchases and is then given permission to come onto the land to claim that property. *Executed license* Arises any time the person receiving the license expends money or labor in reliance on the license. License irrevocable until person gets value out of expenditure.

Two situations in which a license is made irrevocable:

1) due process violation 2) right to counsel violation

Two way to challenge admissibility of an identification

(1) Felony (2) Misdemeanor (3) Malum prohibitum (4) Malum in se (5) Infamous

Types of Crimes

Fee Simple Absolute Defeasible Estates Fee Tail Key -- should run in perpetuity

Types of Freehold Estates

Public Nuisance Private Nuisance

Types of Nuisance

1. The Elements of the Unconscionability Defense Element #1: Procedural Unconscionability Element #2: Substantive Unconscionability

Unconscionability

"Surcharging the easement" Owner of easement begins to excessively use the easement beyond its scope. The holder of the servient estate can sue to enjoin the excessive use of the easement or collect damages. This does not end the easement, but ends excessive use.

Using the Easement beyond its scope

If the defendants reside in multiple states, venue will be dictated by the location of the harm. A plaintiff can also lay venue in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated. Keep in mind that the "substantial events" giving rise to a lawsuit can happen in more than one judicial district.

Venue (28 U.S.C. § 1391) Location of Events

If a plaintiff files suit in an improper venue, the court may dismiss the suit or, in the "interest of justice," transfer the case to a venue where the case could have been filed originally.

Venue (28 U.S.C. § 1391) Transferring Venue in the Interest of Justice

All voices must be identified when a phone conversation or recording is offered in evidence. Generally, direct evidence is offered by testimony of a witness who recognizes the voice.

Voice Identification

If a party wishes to defend the action against him on any of the grounds below, he must raise them anytime before the trial ends, or else forfeit them. (a) Failure to state a claim upon which relief can be granted (b) Failure to join a necessary party

Waiver - Use 'em or Lose 'em: Before the Trial Ends

If a party believes that the court lacks subject matter jurisdiction over a claim, it may raise this defense at any time, even on appeal. The defense is never forfeited.

Waiver of Defenses - Never Lost

Determines what someone who owns land NOW can or cannot do with it. Will arise in landlord tenant law, life estates, mortgagor/mortgagee relationship

Waste

Process consists of two items: a copy of the complaint and a summons. A summons is a court document that informs the defendant that the complaint has actually been filed and that he must respond to it, or else be held in default. Unless both the complaint and summons are served on the defendant at the same time, process has not been completed.

What Is "Process"?

A mortgagor is permitted to do such acts on the mortgaged property that are considered usual and proper, including remodeling structures and removing fixtures in a reasonable manner.

What sort of actions may a mortgagor take on property?

b. A "wheel-and-spoke" relationship: Where one common member enters into agreements to commit a series of independent crimes with different individuals: Each agreement is a separate conspiracy

Wheel and spoke relationship in a conspiracy

The parol evidence rule only applies to oral or written communications made prior to or contemporaneously with the execution of a written agreement. This means that it will not apply to subsequent agreements entered into after the execution of the written document.

When the Parol Evidence Rule Will Not Apply Subsequent Agreements

Any person at least 18 years old and who is not a party to the action can serve process. Thus, although plaintiffs are free to file their own complaints and argue cases pro se, they may not serve process on their own.

Who Can Serve?

A party who does not sign a contract that is governed by the Statute of Frauds.

Who has a Statute of Frauds defense?

A g'vt forensic expert who writes a report is creating testimony (they must be at trial) A child who reports physical abuse is not making a testimonial statement. A victim who is shot and dying is not making a testimonial statement.

Who is subject to Confrontation Clause - forensic expert, child, victim?

If a seller makes a non-conforming tender, but time for performance remains under the contract, then the seller may substitute conforming goods. Two requirements: i) Seller must give buyer reasonable notice of his intention to cure. ii) Seller must make conforming delivery within the time specified in the contract

Work-Arounds for Breaching Sellers The right to cure

The state possesses the power to regulate for the health, safety, and welfare of its citizens. Through an enabling act, the state may delegate to a municipality the authority to protect the welfare of its citizens by enacting a zoning ordinance. A zoning ordinance may be challenged under the Due Process and Equal Protection Clauses. A zoning ordinance may also be subject to a First Amendment challenge if it regulates billboards or aesthetics.

Zoning

(a) Commercial speech; and (b) Sexual or indecent speech.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Certain categories of speech receive lower levels of protection (quasi-protected speech):

Final judgments, if essential to a particular case, are admissible.

Hearsay Exceptions Judgment as to Personal, Family, or General History, or Boundaries: FRE 803(23)

Manslaughter

What is a killing without malice?

a. Physical b. Mental c. Time

Adverse possession has three major components:

Defendant intended to batter the victim and failed. So long as defendant intended to commit the battery, it is no defense that the victim was not aware of the assault or that the defendant was not presently able to commit the battery.

"Failed Battery" Assault

Defendant intends either to batter or to put the victim in fear of an imminent battery A conditional threat is generally insufficient, unless accompanied by an overt act to accomplish the threat. Mere words are insufficient. When a reasonable person would not expect imminent bodily harm, there is no apprehension assault. Connotes "expectation" more than necessarily "fear" (though the term "fear" is employed frequently in assault crime statutes). The victim does not have to actually be afraid but rather to simply (and reasonably) anticipate or expect that the defendant's act(s) will result in immediate bodily harm. Any threatened contact, including one that is offensive or insulting, is sufficient to constitute apprehension assault. The threat must be to commit a present battery; a promise of future action is generally not an assault.

"Fear of Battery" Assault

The SOF writing need not be a single document. A party may satisfy the Statute by tacking together several documents which, once combined, satisfy all the necessary requirements for the Statute of Frauds. All documents must either: (1) be signed; (2) if unsigned, be incorporated by reference; (3) if neither signed nor incorporated by reference, fulfill tacking requirements.

"Tacking Together" Multiple Documents

(1) Tract Index (Minority) (2) Grantor-Grantee Index (Majority)

Indexes (Process of Recording a Conveyance)

. An inference is required. .

Circumstantial evidence:

Any fault on the part of the plaintiff is a complete bar to recovery.

Contributory negligence

A person does not have a REP in something she knowingly exposes to the public.

Knowing exposure

The parties have addressed a topic in their contract but have done so *ambiguously such that the resolution of the matter has been left unclear. *

Interpreting Ambiguous Language The problem/issue

A periodic tenancy has a set beginning date and continues from period to period (e.g., from month to month) without a set termination date until proper notice is given.

Periodic Tenancy Lease Definition

The court will not issue a PI that is injurious to the public interest.

Preliminary Injunction Public Interest

Generally have standing to enforce covenants and equitable servitudes.

Property Owners' Associations

Subsequent Remedial Measures Compromise and Offers to Settle Payment of Medical and Similar Expenses

Legal Relevancy (FRE 407-411): Otherwise relevant evidence that is barred due to public policy.

(a) Contraceptives (b) Marriage (c) Abortion (d) Relatives

Substantive Due Process Fundamental Rights— Privacy

Something that is conscious or willed, as opposed to purely reflexive.

Voluntary Act

A rendition of services with good incidentally involved. Example - contract w/ an artist to paint a portrait would be governed by common law

Services Contract with Incidental Goods

If the true owner has granted sub-surface rights to a third party, the adverse possessor only had claim to the surface rights not the sub-surface rights. Literally, the underground.

Adverse possessor typically gets whatever the true owner has.

Anti-evolution laws prohibiting the teaching of Darwinian principles in public schools are unconstitutional. The state cannot put religious classes in public schools.

Establishment Clause Public School Curriculum

The doctrine of claim preclusion (sometimes called "res judicata") bars claimants from re-litigating a case that they have already lost. By definition, the doctrine will arise where there are two lawsuits—one that has been resolved, and one that is pending.

Claim Preclusion

(1) If defamation is related to capacity as public official, they must prove clear and convincing evidence of actual malice (2) Defendant knew information was false or recklessly disregarded truth or falsity.

Defamation Public official plaintiff

Publication means someone other than the plaintiff read, saw, or heard the defamation. Plaintiff must show defendant either intentionally published the information or was negligent in publishing the information.

Defamation Publication

School prayer: As a general rule, school prayer is per se unconstitutional.

Establishment Clause Religious Activities Conducted at Public Schools School Prayer

a. There is no right to prepay mortgage debt unless terms of mortgage expressly authorize prepayment b. If prepayment is permitted, usually accompanied by prepayment fees. Prepayment fees routinely upheld.

Discharge of Debt and Mortgage Prepayment of Mortgage

Discovery is the portion of a lawsuit in which the parties can learn information from each other and from non-parties. What you need to know about discovery can be divided into four separate topics: (1) mandatory disclosures, (2) scope, (3) methods, and (4) enforcement.

Discovery

Congress has the power to override a veto by a two-thirds vote in both the Senate and House of Representatives.

Executive Power Chief Executive Veto Power Congressional Override:

Even if a party seeks information that is relevant, not work product, non-privileged, and does not impose an undue burden, the information may still be undiscoverable if the request seeks information pertaining to certain types of experts. Non-Testifying Expert v. Testifying Expert

Discovery Experts

Each party must provide to all other parties a computation of damages the party seeks, as well as any documents or other materials supporting that computation.

Discovery Initial Disclosures Damages

An expert may testify and give reasons without first testifying to the underlying facts or data: unless the court requires otherwise The expert may, however, be required to disclose these facts on cross-examination This rule serves to avoid using an expert as a conduit for inadmissible evidence and helps to limit the use of hypothetical questions. NOTE: An attorney qualifies the expert and then may skip straight to the opinion testimony without reviewing the underlying data, unless the court requires otherwise.

Acceptable Testimony Disclosure of Facts or Data Underlying Expert Opinion (Rule 705)

The court will find it was NOT a waiver if: 1) the client DID NOT intend to waive the privilege; 2) the client took reasonable steps to protect the information; 3) the client took timely steps to remedy the disclosure.

Attorney-Client Privilege Inadvertent Waiver:

If the witness is not testifying as an expert, any testimony he or she gives that is an opinion or an inference must be: (1) Rationally based on the perception of the witness = percipient witness (a) The testimony must be based on personal knowledge. (2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.

Acceptable Testimony Opinion Testimony by Lay Witnesses (Rule 701)

It is very hard for one co-tenant to adversely possess against another. The only way one co-tenant can adversely possess against another is if there has been an ouster - ousting the other possessor from making any use of the property

Adverse Possession - Co-Tenancy Situation

(a) The general rule: the auctioneer is inviting offers and the responsive bids are the offers. EXCEPTION: If the auction is held "without reserve," then: the auctioneer is making an offer to sell to the highest bidder.

Auctions

(a) federal suits brought by one state against another state, or suits brought by the federal government against a state; (b) subdivisions of a state (e.g., cities, towns and counties) do not have immunity from suit under the 11th Amendment; (c) Most suits for injunctions—e.g., a private citizen may sue to enjoin a state official from acting in violation of the plaintiff's federal constitutional rights; (d) A state may consent to suit in federal court if it clearly waives its 11th Amendment immunity and does so expressly and unequivocally; (e) Pursuant to its enforcement powers under the post-Civil War amendments (13th, 14th, and 15th), Congress can authorize private suits by individuals to compensate for state violations of those amendments

11th Amendment does not apply to the following:

it is useful to distinguish a "suspect" from a "defendant." A suspect is an individual suspected by the police of having committed a crime. A suspect becomes a defendant at the initiation of the formal adversarial process—when he is formally charged and the prosecutor is now involved in the case. *A "suspect" has no Sixth Amendment protection; a "defendant" does*, but only for the crime he is a defendant for. In other words, the Sixth Amendment is *"offense specific"* - It only shields the defendant from questioning on the offense he has been charged with.

6th Amendment Suspects v. Defendants

Permission to be on the land will always destroy hostile intent. EXAMPLE: If an adverse possessor goes into adverse possession but after being there a short period of time, the true owner says that he noticed them on the land and gives them permission to remain, it will end hostile intent. Mere knowledge of the intruder does not imply permission - the person needs to let them know that they are there w/ permission.

Adverse Possession - Permission

As soon as the statute of limitations runs, the adverse possession relates back to the date of the entry onto the land, meaning that the true owner has no cause of action against the adverse possessor

Adverse Possession - Relation Back

First degree - premeditated and deliberated killing, of a human, that's unlawful, committed w/ malice, with specific intent to kill Second degree - unlawful killing, of a human, committed w/ malice (general or intent to kill)

Murder by Degrees:

Majority - a mistaken encroachment is sufficient for hostile intent Minority - hostile intent will only exist if the person who did the encroachment would have done so even if they had known of the encroachment; a mistaken encroachment is not enough

Adverse Possession - There is a split of authority on encroachment as hostile intent.

Claiming the land as your own

Adverse Possession - claim of right

Adverse Possessor has entered believing that he had good title to the property under a deed but does not

Adverse Possession -Color of Title

Legally sanctioned stealing of title to land away from the rightful owner. The law favors land use.

Adverse Possession Policy

Adverse possessor has to occupy with a sufficiently hostile intent Hostile: Claiming the land as your own Two ways to satisfy this requirement: 1) Claim of Right 2) Color of Title

Adverse possession Mental Component

(1) Adverse possessor actually, openly, notoriously and exclusively occupies the land in a manner sufficient to put the true owner on reasonable notice of the adverse possession. (2) Minority rule: requires possessor to pay taxes on the property

Adverse possession Physical Component

Adverse possessor has to be on the land continuously for the statutory period. (a) Common law: 20 years (b) Otherwise, determined by a statute within the jurisdiction. Continuously is a question of fact based on the nature of the land and the use to which it is being put. I.e. snow makes property inaccessible for six months out of the year - if you possess other months, it's continuous

Adverse possession Time Component

(a) Accomplice: A defendant who is an accomplice to the killer may be held liable for a homicide even though only the killer actually acted to cause the victim's death (b) Conspiracy: Where the reasonably foreseeable result of a conspiracy is homicide, and that homicide was committed in furtherance of the conspiracy, then all members of the conspiracy can be held liable for the homicide regardless of which of the conspirators actually caused the killing (c) Substantial Factor: where multiple independent actors cause the same death, each can be guilty (d) Co-Felon Liability: Where a defendant causes the death of another, even if not at his own hands, during the commission of or an attempt to commit a felony (i.e. Felony-Murder)

A defendant who does not personally kill the victim may nonetheless be legally responsible for a killing in the following four circumstances:

Under the majority approach: risk of loss is deemed to follow equitable title, and therefore the risk of loss is on the buyer. Under the Uniform Vendor and Purchaser Risk Act (minority rule): the risk of loss remains with the seller until the legal title or possession of the property has passed to the buyer

A land-sale contract Loss of property after contract, but before deed

Combines adverse possession periods to meet the statutory requirement. There must be a transfer from one adverse possessor to another in order to allow for tacking. (could be a deed, K, etc.)

Adverse possession Time Component - Tacking

There are three bases for opinion testimony: a. Personal knowledge at or before trial b. Facts presented to the expert at trial - hypothetical questions are permitted (rare today) c. Facts presented to the expert outside of court (reports from others - including non-admissible evidence)

Acceptable Testimony Basis of Opinion Testimony by Experts (Rule 703)

These out-of-court facts must be of the type "reasonably relied upon" by other experts in the particular field. If the data or facts relied upon consist of otherwise inadmissible hearsay, the court must perform a balancing test to determine admissibility ----- the proponent must show the probative value of the evidence substantially outweighs its prejudicial effect. The burden is on the proponent. The Rule 703 balancing test favors EXCLUSION of the underlying facts UNLIKE Rule 403, which is a rule favoring INCLUSION.

Acceptable Testimony Basis of Opinion Testimony by Experts (Rule 703) Reasonable Reliance rule:

The court may, on its own or at the request of either party, appoint expert witnesses. An appointed expert witness MUST: advise the parties of his findings and must allow either party to depose him. An appointed expert MAY: be called to testify and be cross-examined by either party

Acceptable Testimony Court-Appointed Experts (Rule 706)

Generally, an expert may give an opinion or inference which embraces an ultimate issue Limitation in criminal cases (FRE 704(b)): An expert may not give an opinion as to whether the defendant: did or did not possess the mental state or condition which constitutes an element (or defense) of the crime charged. Such ultimate issues are determined by the jury. Examples (PERMISSIBLE): (1) cause of accident, illness, death; (2) whether a product is unreasonably dangerous/defective; (3) whether a document is forged/genuine; (4) whether defendant was insane/mentally ill; (5) standard of care in a civil malpractice action or a crime. Examples (IMPERMISSIBLE): (1) legal conclusion that plaintiff was contributorily negligent; (2) legal conclusions regarding the content of law (i.e., defendant intended to kill the victim).

Acceptable Testimony Opinion on Ultimate Issue (Rule 704)

Reliability of scientific tests: the trial court acts as "gatekeeper" (rule 104(a)) The MBE follows Daubert. Mnemonic TAPES. Daubert factors include: (1) T: has the theory been Tested? If so, how extensive? (2) A: general Acceptance in the relevant community (3) P: Peer review re: the scientific theory (4) E: degree or rate of Error (5) S: Standards Frye test: Requires general acceptance in the scientific community. Minority position on the MBE; trap answer.

Acceptable Testimony Testimony by Experts (Rule 702) Daubert

UCC Section 2-207 deals with the commercial setting in which parties transact business via the use of pre-printed forms, and the difficulties created by application of the common law mirror image rule to such settings. A so-called "battle of the forms" may occur when the terms of the form used by the seller do not match the terms of the form used by the buyer (or vice versa). Because the seller's acceptance contains terms that vary from the buyer's offer, the seller's response constitutes a non-conforming acceptance. (1) The mirror image rule: under this common law rule, an acknowledge of an order form with different terms will not create a contract (UCC changes this) (2) The last shot doctrine: under this common law, the last shot fired constitutes the terms of the contract (UCC changes this); whoever sent the nonconforming boilerplate form gets their terms

Acceptance and the UCC - The UCC's Rejection of Common Law: Case #2—The Battle of the Forms

*Default rule*: An offeree's silence in response to an offer. does not constitute silence *The "acceptance by silence" exception is in play in the following situations:* a) Situation #1: where the offeree takes the benefit of the offeror's services with a reasonable opportunity to reject them, and with reason to know compensation was expected b) Situation #2: where the offeror has given the offeree reason to understand that acceptance may be communicated by silence, and the offeree intends as much c) Situation #3: where because of previous dealings and other circumstances, it is reasonable that the offeree should notify the offeror if he does not intend to accept (i.e. magazine subscription)

Acceptance by silence - common law

Unless the terms of the offer state otherwise, an offeree can accept either by promising or performing. However, the offeree must accept via performance where the terms of the offer or the surrounding circumstances make it clear that a performance is required.

Acceptance through Performance or Promise

There are only two general requirements to constitute effective acceptance. a. First requirement: the acceptance must mirror the terms of the offer. b. Second requirement: the acceptance must be communicated to the offeror.

Acceptance under Common Law

An accomplice is an individual who does some act or omission w/ legal duty that facilitates commission of the crime or the attempt, with the intent to bring about the commission of the crime. An accomplice is charged as if he were the principal. There is no requirement to prove the accomplice was essential to bring about the crime. Minority of modern statutes - accomplice liability may be established when the provider of goods or services has knowledge he is assisting with the commission of a crime and benefits from the transaction (i.e. selling a gun to a robber) and seller contributes w/ purpose to help the crime

Accomplice

Parties do not fully perform duties under contract. A dispute arises about who breached. The parties enter a new agreement (the accord) to settle the dispute. A party promises to accept substituted performance in satisfaction of an existing duty. General contract law applies to accords, such that consideration is required. There may be sufficient consideration where: (a) If the accord involves an agreement for partial or substituted performance, consideration is sufficient if the substituted performance differs significantly from the original performance, or its obligation is doubtful. (b) If the accord involves an agreement for partial payment, consideration is sufficient if there is good-faith or bona fide doubt about the amount owed.

Accord and Satisfaction

(a) If the accord involves an agreement for partial or substituted performance, consideration is sufficient if the substituted performance differs significantly from the original performance, or its obligation is doubtful. (b) If the accord involves an agreement for partial payment, consideration is sufficient if there is good-faith or bona fide doubt about the amount owed.

Accord and Satisfaction There may be sufficient consideration where:

Actual cause (or cause in fact) may be satisfied by one of three tests: A) But For: but for the defendant's prohibited act, the criminal result would not have occurred B) Substantial Factor: When there are multiple independent causes of the same harm, each substantial factor is considered a cause in fact. C) Acceleration: When D's conduct speeds up an inevitable death, even by a very brief amount of time, D is considered an actual cause of death because he "accelerated" an inevitable result. I.e. cutting off life support to someone who is mortally ill NOTE - Can have prohibited acts that are both substantial factor and acceleration

Actual cause

Where the landlord or someone acting on his or her behalf physically evicts the tenant from all or part of the property. Tenant is no longer obligated to pay rent. Partial actual eviction excuses the tenant from paying any rent. (Note that this acts as sort of a penalty for the LL's bad-faith behavior, which is why the tenant gets complete rent cancellation.)

Actual eviction

Actus reus is the physical conduct that produces the criminally prohibited result. This element may be met by: (1) A voluntary act that causes an unlawful result; (2) An omission to act where the defendant is under a legal duty to act; or (3) Vicarious liability where the defendant is responsible for the acts of another party. Acts that are reflexive, convulsive, performed while unconscious, or otherwise involuntary are insufficient, as are mere bad thoughts unaccompanied by action. However, habitual acts that one is simply "unaware of" are considered conscious and voluntary. Acts performed under duress are volitional, though the duress may be a defense.

Actus reus

(a) Older case law suggests: you need a legal description of the land - i.e. meters and bounds; "north half of block 66", etc (b) More current decisions suggest: that an address or some other description of the property may suffice

Additional Writing Requirement under Statute of Frauds for Contract for Sale of Land

A nonconforming acceptance contains additonal terms when its provisions address na issue or topic not addressed in the original offer. Additional terms become part of a contract, unless: 1) The offer expressly limits acceptance to its own terms; 2) The offeror objects to additional terms within a reasonable amount of time after receiving notice of them; 3) The additional terms would materially alter the contract

Additional terms in battle of the forms

If a gift of real estate described specifically in a will is not in the testator's estate at the time of his death, the gift is adeemed by extinction, and the beneficiary takes nothing. If a gift of real estate was made during the testator's lifetime, but the specific property is still mentioned in the will, the gift is adeemed by satisfaction because the beneficiary has already received it. If a gift of real estate was made during the testator's lifetime, but a general devise is in the will (e.g., "one-third of my estate"), then the real estate already received will not be adeemed by satisfaction unless: (a) the will provides for deducting the gift; (b) the testator, in writing, declared that the gift was part of the general devise; or (c) the devisee, in writing, acknowledged that the gift was part of the general devise.

Ademption

To trigger a sudden heat of passion, defendant must be adequately provoked. This is measured objectively: a provocation that would trigger a sudden homicidal rage in an ordinary person. EXAMPLES -- - the victim of a serious battery or a threat of a deadly force, - where she found her spouse engaged in sexual conduct with another person, or - where he observes the serious physical injury of a close family member. Where a defendant kills after an exchange of "mere words," courts generally will not find adequate provocation, no matter how offensive the words. A causal connection must exist between the provocation and the formation of the intent to kill. The killing must occur while the rage is hot - if there's enough time between the provocation and the killing for a reasonable person to cool off it's murder If a person actually cools off, despite the fact that even a reasonable person might not have, it is murder and not voluntary manslaughter.

Adequate provocation sufficient to show a lack of malice

They are conducted for a *non-criminal* purpose and therefore justified based on reasonable suspicion. Agency Inspections An administrative search is really best understood as an *"agency compliance inspection"* whereby compliance with administrative regulations or health and safety codes is verified. Normally, agency inspectors will also be required to obtain an administrative warrant to search private homes or businesses, with some exceptions: *Airport Screenings*. *Border Searches* *Customs*

Administrative Searches:

1. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible, if the mnemonic LOCS applies. a. L: Lost (1) All the originals have been lost or destroyed, unless the proponent lost or destroyed them in bad faith. b. O: Opponent (1) The opponent has possession of the original and has refused to deliver it (even upon notice by the pleadings or by the court). c. C: Collateral (1) Where the writing, recording, or photograph is not closely related to a controlling issue, i.e., witness merely refers to a writing, but not to prove its contents. d. S: Subpoena (1) The original cannot be obtained by any available judicial procedure.

Admissibility of Other Evidence of Contents

Parties may also contract out of the legal and equitable remedies available under the law, by specifying agreed-to remedies in the contract. These remedies typically take two forms: (1) liquidated damages provisions; and (2) provisions limiting or excluding damages.

Agreed-To Remedies

Past or moral consideration - A promise in exchange for something already given or performed is not supported by consideration. (1) Exception #1: a written promise to pay a debt barred by limitations is enforceable. (i.e. SOL) (2) Exception #2: a written promise to pay a debt discharged by bankruptcy is enforceable. A minority of jurisdictions also follow the "material benefit" test

Alternatives in the Absence of Consideration Past or Moral Consideration

If a party amends a pleading by adding a new claim, that amendment will be considered filed on the date on which the original complaint was filed as long as the new claim arises from the same transaction or occurrence as the existing claim(s). This is often called the "relation back" rule, because it allows "related" claims to be considered filed "back" at the time of the original suit.

Amendments and Statutes of Limitations Amendments That Add New Claims:

Satisfying the statute of limitations when adding a new party is much harder than when adding a new claim. Such amendments will only "relate back" to the date of the original filing if: (a) the party to be added knew of the lawsuit soon enough not to be prejudiced in defending it and in no case later than the time permitted for service of process, (b) the party to be added should have expected to be named as a defendant, AND (c) the party to be added was originally left out of the case because of a mistake in identity.

Amendments and Statutes of Limitations Amendments That Add New Parties:

Five ways to satisfy the UCC Statute of Frauds: *S C*ru *M P S* (1) *S*igned writing (aka the "old-fashioned way") (2) The In *C*ourt Admission (aka, "Coming Clean is Good for the Soul but Not for the Pocket Book") (3) *M*erchant's Confirmation (aka, "Speak Now or Forever Hold Your Peace") (4) *P*artial Performance (aka, "Been There, Done That") (5) The Problem of *S*pecially Manufactured Goods (aka., "Now you tell me!")

Analyzing Problems under the UCC Statute of Frauds (OL IV. E.) Second Question: Is the UCC Statute of Frauds Satisfied?

The UCC Statute of Frauds is Section 2-201, which by its terms governs: agreements "for the sale of goods for the price of $500 or more." The UCC Statute of Frauds applies to the entire price, not just the portion which exceeds $499. The UCC Statute of Frauds also applies if a contract as modified falls within the Statute. By that same token, if the newly modified contract now falls outside the Statute of Frauds, it does not apply.

Analyzing Problems under the UCC Statute of Frauds (OL IV. E.) First Question: Is the Contract within the UCC Statute of Frauds?

a. If a party has relied to its detriment on an oral contract whose enforcement is barred by the UCC Statute of Frauds, *the aggrieved party may be able to secure a remedy via promissory estoppel.* (1) *Majority of courts:* hold that promissory estoppel is available as a workaround if a strong case is shown. Some impose enhanced proof requirements on the claimants, such as proving unconscionable injury or that the other party would be unjustly enriched without enforcement of the contract. (2) *Minority of courts:* hold that the express language of the UCC Statute of Frauds precludes promissory estoppel. (3) *Construction contractors*: Virtually all courts have protected a general contractor via promissory estoppel even if the oral subcontract in question is for goods at a price of $500 or more.

Analyzing Problems under the UCC Statute of Frauds (OL IV. E.) Third Question: Is there an Alternative Basis for Enforcement? Promissory Estoppel

When a particular liquidated damages clause is reasonable for the anticipated harm in the contract but unreasonable as applied to the facts at hand, there is a split as to whether courts will enforce the clause: MAJORITY RULE - holds the clause is valid and enforceable MINORITY RULE - holds the clause is an unenforceable penalty

Anticipated versus Actual Harm for Liquidated Damages

If there are reasonable grounds for insecurity (suspect anticipatory repudiation might happen), the insecure party may make a demand for adequate assurance of performance. Upon making a demand for assurances, party may suspend his own performance so long as it is commercially reasonable to do so. The failure to respond with reasonable assurances constitutes a repudiation by the non-responding party. This can occur where the other party: (a) does not respond to the demand for assurances in a reasonable time (30 days under the UCC), or (b) does not respond in a way that provides reasonable assurances

Anticipatory Repudiation Adequate Assurance of Performance

Federal circuit courts have jurisdiction to hear only appeals seeking review of: (1) a final judgment, (2) an order pertaining to preliminary injunctive relief, (3) an order pertaining to certification of a class, (4) an order that has been certified by the district court, or (5) a collateral order. The orders described in (2), (3), (4), and (5) are sometimes referred to as "interlocutory orders" because they are issued during the pendency of the litigation.

Appeals - Appellate Jurisdiction

A party may appeal a district court order when a final judgment has been issued. A final judgment is a judicial act that disposes of the entire case. When a final judgment has been entered, there is nothing left for the court or parties to address. If matters do remain, then whatever judgment that was entered was apparently not "final." The court has discretion to enter a "partial final judgment"—a final judgment on one claim but not others. If the court does this, a party may appeal the claim on which that judgment was entered.

Appeals - Appellate Jurisdiction Final Judgment

Once an appellate court determines that it has jurisdiction to hear an appeal, it must then determine how to analyze the lower court's allegedly erroneous decision.

Appeals - Appellate Review

Questions of law or fact in which trial courts are imbued with significant discretion—are reviewed using a deferential "abuse of discretion" standard -- only if no reasonable judge could have reached the same decision will the decision be disturbed. Examples of such questions include: -- whether to permit amendment, -- whether to exclude evidence as prejudicial, or -- whether to bar discovery as an undue burden.

Appeals - Appellate Review Standard of Review - Inherently Discretionary Questions

If an appellate court is reviewing a question of fact, the appellate court will affirm the lower court's finding unless it is "clearly erroneous" / the trial court "clearly" made a mistake of fact. This is a high standard to meet and appellate courts rarely overturn lower court findings of fact.

Appeals - Appellate Review Standard of Review - Questions of Fact

When an appellant claims that a lower court made an error in its assessment of the law, the appellate court reviews the lower court's decision de novo. De novo review means that the appellate court grants no deference to the lower court and addresses the legal issue as if it has never been addressed in the case.

Appeals - Appellate Review Standard of Review - Questions of Law

STEP 1: Identify the type of tenancy involved (creation/term/termination). STEP 2: Which of the four basic disputes might be involved? Dispute over rent. Dispute over condition of the premises. Dispute over possession of the premises. Dispute over improvements: Who gets to keep improvements to the premises? STEP 3: Has landlord/tenant transferred their interest in the property? Know the effects of a transfer.

Approach to a landlord-tenant question:

An arrest warrant is required before police can arrest an individual in his own home, absent exigent circumstances or consent. Exigent circumstances require the following: (1) An arrest attempt outside the home is: *thwarted* because the suspect retreats to the home (2) There is: *insufficient time* to get a warrant without endangering the evidence or enabling the suspect to flee (3) The arresting officer is: in *hot pursuit* and has probable cause to arrest (4) The offense is more *serious* than a minor misdemeanor. (5) The *officer did not unlawfully create the exigency*. Lawfully = reasonable mistake

Arrests at home

Liability for assault will not be found unless a reasonable person in the same position as plaintiff would have experienced the same apprehension. A long as plaintiff's apprehension is reasonable the fact that defendant lacked the actual ability to cause the harmful or offensive contact does not defeat liability.

Assault Reasonable apprehension:

a. acted with the desire to cause an immediate harmful or offensive contact or the immediate apprehension of such a contact, and b. knew that such a result is virtually certain to occur. Transferred intent often arises with battery, assault, and false imprisonment. Look for words that negate intent. For example, "If it weren't a tort, I would punch you in the face."

Assault To prove intent, plaintiff must show that defendant:

You often have assault and battery together. But you can have one without the other as well. EXAMPLE (Battery without Assault): A sleeping person is kissed against their will. Defendant sneaks up behind Plaintiff and breaks a board over Plaintiff's head. EXAMPLE (Battery without Assault): Defendant throws a knife toward Plaintiff. The knife just misses Plaintiff. No contact, so no battery. But assault. EXAMPLE (Assault without battery): Defendant throws a knife at Plaintiff. Plaintiff sees the knife coming towards him and then gets stabbed by the knife. No merger. EXAMPLE (Conduct Constituting Both Assault and Battery): Defendant throws a knife at Plaintiff. Plaintiff sees the knife coming towards him and then gets stabbed by the knife. No merger.

Assault and Battery

Common law: misdemeanors. Modern statutes: aggravated forms of assault and battery are felonies.

Assault and Battery Is this a misdemeanor or felony?

Assignment for value is valid against the third party obligor and cannot be revoked by the assignor. A gratuitous assignment is valid against a third party obligor. The obligor cannot claim lack of consideration as a defense. A gratuitous assignment is only valid against the assignor if it has already been executed. A gratuitous promise to assign in the future is unenforceable. .

Assignment for Value Contrasted with Gratuitous Assignment

Assignment for value is a transfer of a right to receive a performance under a contract. To make an effective assignment of a contract right, the owner of that right *must manifest an intention to make a present transfer of an existing right.*

Assignment of Rights

The client is the holder of the privilege and may refuse to disclose (and prevent other persons from disclosing) confidential communications made for the purpose of seeking professional legal advice or services The privilege may be claimed by: the client (holder) or the lawyer on the client's behalf NOTE: The confidential communications privilege SURVIVES the client's death and may be asserted by the executor or the attorney.

Attorney-Client Privilege

Lawyer includes: any person authorized or reasonably believed by the client to be authorized (i.e., disbarred attorney, never licensed) to engage in the practice of law in any state or nation

Attorney-Client Privilege "Lawyer"

Each party must provide to all other parties copies of (or descriptions of) documents, electronically stored information (ESI), and tangible objects that a party may use to support a claim or defense. PLEASE NOTE: This is an updated rule on ESI.

Discovery Initial Disclosures Documents or Objects

These disclosures must be made within 14 days after a Rule 26 (discovery planning) conference.

Discovery Initial Disclosures Timing

(1) Consent This is only a defense for a simple battery (not an aggravated battery). (2) Self-defense and defense of others This defense is only available if proportional force is used. (3) Crime prevention Where the defendant commits an offensive touching to prevent someone from committing a crime, this will be a defense to battery.

Battery Defenses

Once a defendant files an appropriate cross claim against a co-defendant (i.e., a claim arising out of the same transaction or occurrence underlying P's suit), the defendant may join with that claim additional claims, even if those claims are unrelated to the transaction or occurrence underlying P's suit. This is simply an application of the joinder rule, that allows plaintiffs to file multiple claims, even if the claims are not related to each other.

Claims Joined With Cross Claims:

A buyer in a platted subdivision acquires an implied easement to use streets, alleys, and parks in the subdivision.

Easement by Plat

Benefits a person or entity rather than a piece of land EXAMPLE: Power Company can run power lines across Owner's property. This is an easement in gross. Servient estate is Owner's property, no parcel is being benefited.

Easement in Gross

A judgment in a class action will bind all members of the class unless they opt out of the class. Class members have the option of opting out in so-called "common-question" class actions—i.e., class actions where common questions of law or fact predominate over individualized questions. .

Class Actions (Rule 23) Additional Considerations - Binding Effect:

Where the admissibility of one item of evidence is conditioned upon the relevancy of another item of evidence. The judge must determine whether there is enough evidence to find that the necessary fact existed. If the judge does not find sufficient connection between the necessary fact and the evidence, the evidence is not relevant and therefore inadmissible.

Conditional Relevancy (FRE 104(b)):

Promissory conditions: condition the contract performance on the occurrence of the promised performance by the other party. Pure conditions: condition contract performance on the occurrence of events beyond the control of either party

Conditions (OL VI. C.) Promissory versus Pure Conditions

The state is permitted, under the Due Process Clause, to inquire into the qualifications and fitness of candidates for admission to the bar. (1) A candidate cannot be denied admission for past membership in the Communist Party. (2) However, the state can refuse bar membership to an applicant who refuses to answer questions about such membership. (3) A state can require that a lawyer seeking admission take an oath to support the federal and state constitutions.

Bar Admission

A bargain under the consideration doctrine indicates an exchange of either benefits or legal detriments.

Bargain

Denial of *right to jury trial where defendant faced possible imprisonment for more than 6 months* Denial of *right to counsel where defendant was charged with a misdemeanor or felony and imprisonment was actually imposed*

Basis for Appeal

Probable cause is often established based on (1) Police observation, (2) Eye witness accounts, (3) Forensic evidence and tests, (4) Informant tips, or (5) A suspect's own admissions or conduct.

Basis for Probable Cause

(1) ACT - Battery is the unlawful application of force to a victim or setting the unlawful force in motion. (2) MENS REA - The defendant must act with general intent and knowingly, recklessly, or with gross negligence. (3) The unlawful touching must occur without legal justification or excuse.

Battery

A battery arises where a defendant intentionally causes a harmful or offensive contact with the plaintiff's body or with something closely physically connected thereto. Elements: (1) Intent (2) Harmful or offensive contact (3) Person or something physically closely connected to that person

Battery

The fact that a defendant is mentally incompetent, or is a minor, does not preclude a finding that he possessed intent to commit an intentional tort, but incompetency may affect whether such intent actually existed.

Battery Insanity

Harmful = the contact would inflict pain or impairment of any body function Offensive = a reasonable person would regard it as offensive. If defendant knows the particular susceptibility of the plaintiff the defendant will be liable. It is sufficient for a battery if defendant causes a contact with something close to plaintiff. Direct contact not required; setting force in motion is enough. Unlike assault, plaintiff need not be aware of the contact.

Battery The harmful or offensive contact element is satisfied if:

If a defendant acts with the necessary intent to inflict certain intentional torts, but for some reason causes injury to a different victim than intended, the defendant's intent is "transferred" to the actual victim.

Battery Transferred Intent

a. Defendant desired to cause an immediate harmful or offensive contact; or b. Defendant knew such contact was virtually substantially certain to occur c. Be sure to distinguish intent from motive.

Battery To establish intent, plaintiff has to show either:

An easement is an interest in the land of another (you can do something on the land). Checklist for easements: a. Was it properly created? b. Was is the scope of the easement? c. Has it been terminated ?

Easements

Written confirmations follow the formation of a contract. They typically occur after a contract has been formed via face-to-face or telephonic communications. If the written confirmations contain non-conforming terms to the contract, the court will: (1) treat the non-conforming terms as mere proposals for additon if they are sent to a consumer, (2) automatically add any new terms unless they materially change the contract or the receiving party rejects them within a reasonable amount of time, (3) treat different terms as mere proposals which the receiving party is free to accept or reject If both parties send written confirmations containing conflicting terms: all courts agree the knockout rule applies and neither term is in the contract.

Battle of the Forms - Written Confirmations

(1) The overt act for conspiracy simply proves that the D's began preparation to commit the crime, and can be very trivial and far removed from the crime. (2) The overt act for attempt proves that the defendant began to commit the crime, and must indicate that defendant went beyond the point of preparation and began perpetration. EXAMPLE: In the example above, Jerry giving the kidnapper keys to a car in payment would be enough to qualify as an overt act for conspiracy, but would be insufficient to convict for an attempted kidnapping.

Be careful to distinguish the overt act for conspiracy from the overt act for attempt.

A claim is tried before a judge rather than a jury The court must state its finding with regard to facts in dispute and state its conclusions of law separately. In a sense, the judge acting as fact-finder is required to issue special verdicts. This requirement only applies to trials; judges need not make such findings or statements of law on motions to dismiss or for summary judgment.

Bench Trial - Findings and Conclusions

During trial, if a party has been fully heard on an issue, and the court determines that the party lacks sufficient evidence to prevail on a particular claim, the court can enter judgment on that claim without entering judgment on other claims. Entering partial judgment in this way facilitates "interlocutory appeals"—a topic we will cover soon.

Bench Trial - Partial Judgments

A person who mistakenly confers benefits to another party may be entitled to restitution. In this situation, the following will be considered: 1) the blameworthiness of the error, 2) whether the recipient was aware of the error in time to prevent it, and 3) whether the recipient availed himself of the benefits at issue.

Benefits Conferred by Mistake

When a party bestows benefits on his trading partner in connection with what turns our to be a "failed" contract (e.g., incapacity, fraud, duress): the party bestowing the benefits may recover their value via restitution

Benefits Conferred under a Failed Contract

A duplicate is admissible to the same extent as an original unless there is a genuine question of authenticity.

Best Evidence Rule Admissibility of duplicates (Rule 1003):

(1) Where a fact to be proved has a source independent from the writing (i.e., the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the Best Evidence Rule DOES NOT apply. (2) Examples: (a) Sales receipt - not required to prove goods, services were paid for (b) Birth certificate - not required to prove the fact or date of birth (c) Death certificate (d) Marriage certificate (3) Caveat: If, however, the receipt or certificate is offered as evidence to prove a birth, death, sale, etc., then the original must be produced, absent good cause. E.g., witness may testify, "I remember paying the bill," but may not testify, "My records show I paid the bill," unless the receipt is produced. b. More examples (Best Evidence Rule applies) (1) If you are trying to prove that a film is obscene, the film is the subject matter. It must be seen before the issue can be determined. (2) Whether the terms of the contract said X or Y. The actual language of the contract is at issue. The party must produce the contract. (3) Image from a surveillance camera from a bank. In order to tie identification of the thief to the camera, it must become a part of the case. (4) Plagiarism: Must produce the original document and the document as copied. (5) Malpractice: If a doctor misread an X-ray, we must see the X-ray.

Best Evidence Rule Independent Source Rule

The Best Evidence Rule does NOT apply to inscribed chattels. EXAMPLE: License plate; policeman's badge; tombstone; sign on a bus; speed limit sign.

Best Evidence Rule Inscribed chattels

Customs officials may, with no suspicion or cause, as an incident of national sovereignty: (i) Stop vehicles at permanent checkpoints located at or near the border (ii) Conduct "routine" searches of people and property. All international ports of entry, to include airports, qualify as the "border" for purpose of this exception. A search that is unusually intrusive, such as a body cavity search or search of property that results in permanent destruction is non-routine and requires reasonable suspicion. Reasonable suspicion is required to fully search the vehicle. Where a suspect refuses to submit to an X-ray by customs agents at the border, and reasonable justification for detention initially exists, the detention may continue until a bowel movement occurs.

Border Exception

The breaking and entering of the dwelling of another at night with the intent to commit a felony.

Burglary

In common-question class actions, class members must be given notice of the pendency of the suit. The notice must be reasonably calculated to apprise members of the class, and is often accomplished through mail or publication. Under Federal Rule of Civil Procedure 23(b)(3), a class action notice must advise the recipient: (a) that the court will exclude any member of the class who requests exclusion; (b) that the judgment, whether or not favorable, will be binding on all class members who do not request exclusion; and (c) that any member who does not seek exclusion may enter an appearance.

Class Actions (Rule 23) Additional Considerations - Notice:

In a class action case, the court must have personal jurisdiction over every defendant and only the named plaintiffs. (PJ over the named plaintiffs is easy because they consent to jurisdiction by filing the suit.) The court does not need personal jurisdiction over each and every class member.

Class Actions (Rule 23) Additional Considerations - Personal Jurisdiction

(1) Intent to run with the land and burden successors (2) Notice to successors in interest (3) Touch and concern the use and enjoyment of the land. Privity is NOT required.

There are three elements of an equitable servitude:

(a) Whatever the rental obligation is up until notice is given to terminate the lease. EXAMPLE: Month-to-month tenancy, $1,000/month. 1/1 tenant pays, 2/1 tenant pays, 3/1 tenant pays, 3/31 tenant moves out. Tenant will be liable for an additional month's rent.

Common Disputes between Landlord and Tenant - Determine how much rent the landlord can sue for. Periodic Tenancy

(a) Whatever the rent that is fixed in the agreement that is already owed, usually it is not money that is owed with this type of tenancy (e.g., can stay here as long as you do gardening).

Common Disputes between Landlord and Tenant - Determine how much rent the landlord can sue for. Tenancy At-Will

(a) Reasonable rental value of the property

Common Disputes between Landlord and Tenant - Determine how much rent the landlord can sue for. Tenancy at Sufferance

As to intentional torts, the defendant's act or a force set in motion by that act must cause the plaintiff's injury. Proximate cause in intentional torts: It is not a problem - the extended consequences rule holds intentional tortfeasor liable for the full extent of injuries whether they are foreseeable or not.

Causation

Market share liability allows a plaintiff to establish a prima facie case against a group of product manufacturers for an injury caused by a product when the plaintiff does not know from which defendant the product originated. Each defendant is jointly and severally liable and on the hook for its share of the market.

Cause-in-fact (Actual Cause) Market share liability:

Multiple defendants, defendant and act of nature etc. Substantial factor test: Was the negligence of the defendant at issue a substantial factor in the plaintiff's injury? (a) Must use where either defendant alone would have brought about the harm. (b) Assume joint and several liability: Plaintiff can sue one or both defendants and collect all that was owed and the other party can seek contribution from the other party

Cause-in-fact (Actual Cause) Multiple causes

a. preliminary questions of fact regarding admissibility; b. grand jury proceedings; c. preliminary hearings; d. sentencing and probation hearings; e. obtaining a warrant; f. bail proceedings; and g. summary contempt.

Certain proceedings where the Rules DO NOT apply include (think "head, body, and tail" of the case):

Where several crimes are committed under one large scheme in which each member explicitly or implicitly knows of the other parties' participation and a community of interest exists: one single conspiracy results and all links in the chain are guilty for each other's crimes

Chain relationship in a conspiracy

GENERAL RULE: Character evidence refers to a person's general propensity or disposition for honesty, peacefulness, violence. Used as an essential element of the case rarely in civil cases, NEVER an element in criminal cases. b/c it is not a crime to be a bad person. Instead, used as circumstantial evidence of the person's conduct on a particular occasion. Used to impeach credibility (w/ limits).

Character Evidence

Character evidence is generally inadmissible, except where character is an essential element of a cause of action, claim, or defense. (a) Defamation - plaintiff (most popular) (b) Child custody - (parents fitness to raise children) (c) Negligent entrustment - entrustee (d) Negligent hiring - employee All three forms of character MAY be admitted: Reputation, Opinion, Specific Acts

Character Evidence Civil Cases

Tenant is liable for all of the unpaid rent in the lease At common law a landlord could only sue for rent as it accrued. Modern majority approach allows for anticipatory repudiation. Landlord has a duty to mitigate - make reasonable efforts to rent the property on behalf of the tenant in order to mitigate the unpaid rent that he will owe.

Common Disputes between Landlord and Tenant - Determine how much rent the landlord can sue for. Tenancy for Years

Evidence of character may be admissible when offered for a purpose OTHER THAN to show conduct in conformity with one's character (i.e. no propensity). Specific Acts - Circumstantial evidence of other crimes, wrongs or acts is generally inadmissible, but may be offered to prove: (a) M: Motive (b) I: Intent (c) M: Absence of Mistake (d) I: Identity (e) C: Common Scheme or Plan Other acceptable evidence: (a) Knowledge (b) Opportunity (c) Preparation MIMIC evidence is independently relevant circumstantial evidence generally offered: (a) in a criminal case(generally); (b) by the prosecution (if in a criminal case); (c) on rebuttal. MIMIC evidence (i.e., other acts) may have occurred: before, during, or after the date of the offense

Character Evidence Criminal Cases Mimic Rule

The prosecution can do two things: (1) Prosecution can impeach any witness who testifies to their "good" character with questions about defendant's prior bad acts (2) Prosecution can call a witness to testify w/ reputation or opinion concerning bad character of the defendant

Character Evidence Criminal Cases Once the door to character evidence has been opened...

(1) Testimony about a pertinent trait of the defendant (good character): must first be raised by the defendant, called opening the door (a) Pertinent is determined by what the defendant is on trial for. If a crime of violence, then peacefulness is the pertinent trait. If a fraud case, honesty is the pertinent trait. (2) A defendant MAY: "open the door" with reputation or opinion evidence of his good character to prove his innocence and the prosecution may so rebut

Character Evidence Criminal Cases The prosecution MAY NOT initially introduce evidence of defendant's bad character.

A defendant may offer evidence of a victim's violent character as circumstantial evidence that the victim was the first aggressor and thus the defendant acted in self-defense The prosecution may rebut with reputation/opinion about-- (a) good character of the victim and (b) bad character of the defendant

Character Evidence Criminal Cases Victim Character

Defendant is an honest person. Used to show he did not commit fraud. Sufficient to raise a reasonable doubt for a criminal defendant.

Character evidence used as circumstantial evidence of the person's conduct on a particular occasion.

Who is the plaintiff? Who is the defendant/who are the defendants? Who are the responsible parties? What is the plaintiff's injury or injuries? What legal theory/theories can the plaintiff assert? Make sure that it is a torts question.

Checklist for every torts question:

When a class action alleges a violation of state law, it may appear in federal court only if the defendants and the representative plaintiffs (not all class members) are completely diverse from each other. However, if the class has over 100 members and seeks damages over $5,000,000, a federal court may assert jurisdiction over the suit if any single class member is diverse from any single defendant Jurisdiction can be established through an initial filing in federal court or through removal. Home state defendant rule doesn't apply. Don't need agreement of all other defendants for removal (different from regular rules).

Class Actions (Rule 23) Additional Considerations - Subject Matter Jurisdiction:

1. Numerosity 2. Commonality 3. Typicality 4. Representativeness

Class Actions (Rule 23) Four Requirements to form a class :

The class is so numerous that joinder of all members is impracticable. Permissive joinder would be difficult.

Class Actions (Rule 23) Numerosity

A class action is a form of litigation where one person (the representative) litigates a dispute on behalf of a group (the class). This form of litigation is permissible if: (1) a class can be formed, and (2) the action brought is of the sort proper for resolution via a class action.

Class Actions (Rule 23) Permissible if....

The representative parties will fairly and adequately protect the interests of the class. Class representatives are adequate when it appears that they will vigorously prosecute the interests of the class through qualified counsel, which usually will be the case if the representatives are part of the class and possess the same interest and suffer the same injury as the class members. Because named class members must act through class counsel, the adequacy of representation turns in part on the competency of class counsel and in part on the absence of conflicts of interest.

Class Actions (Rule 23) Representativeness

The claims of the representative parties are typical of those of the class, thus ensuring the representative will have incentives to litigate in ways that will protect the class.

Class Actions (Rule 23) Typicality

There is no direct duty of repair imposed on any co-tenant but if a co-tenant makes repairs to the property, they may be permitted a set-off against any third party rents received for the amount of the repair or a set-off in a partition action to be compensated for the amount of the repair.

Co-Tenancy Repairs

Each co-conspirator is liable for the crimes of all the other co-conspirators where the crimes were both: (1) a foreseeable outgrowth of the conspiracy (2) committed in furtherance of the conspiracy When assessing co-conspirator liability, the nature of the agreement determines whether the defendant is connected to other co-conspirators. Chain relationship Wheel and spoke relationship

Co-conspirator liability and the Pinkerton Doctrine

Common Law: All felons were liable for any homicide that is the proximate result of the felony, whether the killer is a felon or not. Modern Majority Rule: Felony murder liability is limited to killings committed by the hand of a co-felon. All killings committed at the hand of non-felons are exempted from felony-murder liability. Minority Rule / Proximate Cause: Follows common law

Co-felony liability for felony murder

Appropriation is an unauthorized use of plaintiff's identity or likeness for defendant's commercial advantage. The wrongful use of plaintiff's identity or likeness must be used in connection with promotion of a product or service and not for a newsworthy purpose.

Commercial Appropriation of Identity or Likeness

Is this an offer? (a) The American advertising rule: ads, catalogs, and price lists are not offers but instead are treated as invitations for offers. (b) The reason for the rule is responses may exceed the available goods or services. EXCEPTION: language that identifies who gets the limited supply of goods, even if there is an excess of demand EXAMPLE: Advertisements that say, "first come, first served" or "first 10 customers only" are construed as offers.

Commercial advertisements

Fight over Rent

Common Disputes between Landlord and Tenant

(1) Failure to deliver possession (2) If the tenant has been evicted (3) Surrender of premises (4) Destruction of premises (5) Potential offset from some sort of duty that is imposed upon a landlord. (6) Impossibility, Impracticability, Frustration of Purpose; Violation of covenant of enjoy use and enjoyment of the property

Common Disputes between Landlord and Tenant - Determine whether the tenant has defenses they can raise as to why they should not be obligated to pay that rent. (6)

In practically every jurisdiction, the default rule for a missing duration term in an employment contract is *the employment at-will rule*, which is that an employer can fire, an employee can quit at any time for any reason. In a majority of jurisdictions, oral or written assurances of job security (during interview or something similar) made to an individual employee or assurances contained in policy documents (personnel handbook) distributed to the workforce may suffice to take the contract out of the default rule.

Common Law Default Rules for Service and Employment Contracts Missing Duration Term for an Employment Contract

If one party performs services at the request of another, but no price is discussed in advance, then the default rule under common law will apply. The default rule for a missing price term is *the reasonable value for the services rendered*. This is the same as UCC. If a contract leaves the price to be fixed by one of the parties, then that party must fix the price in good faith.

Common Law Default Rules for Service and Employment Contracts Missing Price Term

The common law used specific terms for specific categories of accomplices. All were guilty as if they actually committed the crime. 1. Principal in the First Degree 2. Principal in the Second Degree 3. Accessory Before the Fact 4. Accessory After the Fact

Common Law Pleading Terms:

The writing must be a memorandum of the agreement, which can be prepared before, during, or after contract formation The following terms are required: (a) the identity of the parties to the transaction; (b) the nature and subject matter of the contract; need to know what we're dealing with (c) the essential terms of the agreement, such as price and date for performance

Common law SoF The Writing Requirement

The statement of facts should be sufficient to show that the plaintiff is entitled to relief. Complaints must state facts that make the wrongdoing appear plausible, not just hypothetically possible. Finally, a plaintiff is free to allege inconsistent claims. As long as each claim is, on it own, supported by sufficient law and facts, it is properly plead.

Complaint Contents - A statement of facts Inconsistent claims?

The complaint should ask for judgment and specify the relief sought.

Complaint Contents - demand for judgment and relief

For instance, if federal jurisdiction is based on diversity of citizenship, the complaint should state that "the plaintiff is a citizen of New York, the defendant is a citizen of California, and the plaintiff seeks damages in excess of $75,000." If federal jurisdiction is based on the presence of a federal question, the complaint should state, for example, that "plaintiff alleges that her claim arises under the Civil Rights Act and the Fourteenth Amendment to the U.S. Constitution."

Complaint Contents - grounds for subject matter jurisdiction

A search or seizure: must be reasonable to comply with the Fourth Amendment Because *a search or seizure without a warrant is presumptively unreasonable*, the government bears the burden of proving the search or seizure fell within an established exception to the warrant requirement. If police obtain a warrant to conduct the search or seizure, it creates a presumption of reasonableness.

Complying with the Fourth Amendment

(1) *Majority Rule*: computer software and electronic information are treated as goods governed by the UCC (2) The Uniform Computer Information Transactions Act displaces the UCC in Maryland and Virginia in this area.

Computer software and other electronic information like coding - UCC or common law applies?

At common law, the landlord had no obligation to maintain or repair the leased premises. At modern law, under the warranty of habitability, a majority of jurisdictions require the landlord to keep residential premises in habitable condition. A minority of jurisdiction require the same for commercial premises. Tenant can use this as a sword to sue under breach of contract, or a shield to offset damages if the landlord sues for nonpayment of rent.

Condition of the Premises and Who has the Obligation to Maintain - Landlord's Obligation

*Common law*: the tenant had no obligation to repair the leased premises Duty to avoid waste. (a) Voluntary waste: tenant has duty not to do anything intentionally or negligently that could damage the property; otherwise, will be liable. (b) Permissive waste: tenant must take steps to guard against damage to the property (c) Ameliorative waste: At common law: no obligation to make improvements, and landlord could hold tenant liable. At modern law: can improve if expressly authorized or there is a change in circumstances that allows the improvements to be made.

Condition of the Premises and Who has the Obligation to Maintain - Tenant's Obligations

Under the UCC, a definite and seasonable expression of acceptance will operate as an acceptance even though it states additional or different terms UNLESS acceptance is expressly made conditional on assent to the additional or different terms [§ 2-207(1)]. If you have a conditional acceptance, it's not a full acceptance. If the acceptance is made expressly conditional on assent to the additional or different terms, the non-conforming acceptance *will not be effective to form a contract*. (i.e., it's a counteroffer) In this situation, no contract is formed by the writings until the offeror expressly assents to the additional or different terms.

Conditional Acceptance

In some contracts, the obligation to perform is conditioned upon some event or action by the other party. Where there are such conditions in a contract, obligations are triggered when that conditioning event or action occurs. The law regarding conditions deals with two contractual problems: (1) the order of parties' performances (who goes first?); and (2) the remedies where conditions in the contract have failed? (i.e., what happens when a contractual performance is conditioned upon an event and that event does not occur?)

Conditions (OL VI. C.) In General

If a property interest is involved, characterize it: "movable" or "immovable" interest. If an interest is closely connected with land (e.g., a leasehold or the right to rents), it is immovable. If it is not, it is movable. The law of the situs (the place where the land is located) governs all rights in land and other immovables. The law of the situs governs: a) Validity and effect of a conveyance (e.g., the form of the deed or the capacity of the grantor) b) Mortgages, their creation, validity, and foreclosure c) Liens (e.g., materialmen's or laborers' liens) are governed by the law of the situs. Law of place of making governs: a) Underlying contract or note is governed by law of the place of its making.

Conflicts of Law Related to Real Property Law of the Situs v. Law of the Place of Making

1. The Sixth Amendment provides defendant with the right to confront witnesses and evidence again them. 2. The right to confrontation is triggered only by testimonial evidence - statements that are made for the primary purpose of use as evidence at a trial. 3. Confrontation is satisfied by subjecting the witness to "adversarial testing," which means the witnesses testimony is provided under oath and subject to cross examination a. Where the witness is called to testify at trial, this right is satisfied, even if the defendant does not cross-examine the witness. b. Where the witness's prior "testimonial" statements are offered as hearsay, it will violate the right to confrontation unless the defendant had a prior opportunity to subject the hearsay to adversarial testing, for example at a prior preliminary hearing.

Confrontation

Under the Sixth Amendment's Confrontation Clause, in a criminal case where the declarant is unavailable "testimonial" hearsay statements will be inadmissible unless the defendant is given an opportunity to cross-examine the declarant "Testifies" = Testimonial Statements: Statements made under circumstances which would lead an objective witness to reasonably believe that the primary purpose for statement would be for use in investigating or prosecuting the crime. This is based on the speaker's intent and on the questioner's motive in questioning witness. Examples of Testimonial Statements: Pre liminary hearing testimony, grand jury testimony, statements to police during interrogation / after crime has taken place, affidavits, custodial examinations, prior testimony, depositions, confessions Statements to Police: statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

Confrontation Clause Testimonial evidence

. A grand jury proceeding is not an adversarial proceeding, therefore the defendant has no opportunity to cross-examine the witness. Therefore, admission of that witness's testimony at trial against the defendant violates the Confrontation Clause. .

Confrontation Clause and Grand Jury

Congress may abrogate a state's immunity where: (1) the act asserts that it is abrogating the state's immunity; and (2) Congress enacts the act under a grant of power that may abrogate the state's immunity.

Congress Abrogation of 11th Amendment

The president may exercise only those powers expressly or impliedly granted by the Constitution or act of Congress. If Congress validly exercises one of its powers and overrides the President, then Congress prevails over the President.

Congressional Legislation and Presidential Power

Consent is an exception to both the warrant and probable cause requirements. If an individual waives her right to privacy by consenting to a search the search is reasonable, even if the request was based on a hunch. *Plain view* doctrine applies Consent must be *voluntary* based on the totality of the circumstances. Police are not required to inform a suspect of the right to decline to give consent. In certain situations, valid consent is implied by virtue of engaging in *specific behavior*, such as traveling by airplane or engaging in a regulated business. An individual has an absolute right to *refuse* to grant consent, to *withdraw* consent once granted, or to *limit* the scope of consent. However, an individual must clearly express any limitation.

Consent to Search

Consent is *invalid if* it is obtained by asserting a fake warrant, fraudulently, under duress, or pursuant to an unlawful police threat (a threat to do something that the officer has no authority to do).

Consent to a search/seizure is invalid if...

1. A conspiracy is: a. An *agreement* to create an unlawful combination between two or more people b. With intent to agree and specific intent to commit the *target* of the conspiracy 2. *Overt act requirement:* a. At *common law*: the agreement alone established the crime b. *Modern* statutes: usually requires proof of some overt act in furtherance of the agreement

Conspiracy

a. At common law and MPC, a complete and voluntary withdrawal: severs the defendatnt's liability for future crimes of a co conspirator but is not a defense to the conspiracy itself b. The MPC recognizes the additional defense of "renunciation": if a co conspirator thwarts the success of the conspiracy (usually by telling the police) it's a defense to the conspiracy itself

Conspiracy Defenses

a. At common law, where there are only two conspirators, an acquittal of one co-conspirator required: the acquittal of the other b. Most modern jurisdictions (MPC) recognize "unilateral conspiracy," which: permits conviction of a single party when the other party is acquitted or feigned agreement c. The Wharton Rule: If the target offense requires two or more people as a necessary element for commission: they cannot be convicted of conspiracy to commit that offense because the conspiracy is part of a crime, unless a third party joins the agreement. DUELING, BIGAMY EXAMPLE: Dueling requires proof of an agreement to engage in private combat. If A and B engage in a duel, they are guilty of the crime of dueling but not of conspiracy to duel. If a third party encourages A and B to duel, then all three parties can be convicted of conspiracy to duel.

Conspiracy Procedural Issues Acquittal of one conspirator Wharton rule

For the states: it comes from the 14th Amendment Equal Protection Clause. For the federal government: it comes from the 5th Amendment Due Process Clause.

Constitutional Basis for Equal Protection Where does it come from?

Under the Constitution, ex post facto laws are prohibited. An ex post facto law is one that retroactively: (1) makes conduct criminal; (2) enforces a stricter punishment for the same conduct; or, (3) alters procedural or evidentiary rules in such a way that the criminal defendant may be more easily convicted.

Constitutional Issues Ex Post Facto

Under the Due Process Clause of the Fifth and Fourteenth Amendments, criminal laws which are unfair or inconsistently enforced are unconstitutional. This is because people must be on notice which conduct is forbidden. The Supreme Court has required that criminal statutes be specific and give a person of ordinary intelligence "fair notice" of what conduct is prohibited.

Constitutional Issues Void-for-Vagueness Doctrine

Any remainder that isn't vested. If there are any conditions or contingencies, it isn't vested (we aren't sure who the third party will be!). EXAMPLE: "A to B for life, then to the oldest child of C then living." Oldest child of C = Remainder Who will be oldest child alive? - we don't know yet, so it's contingent.

Contingent Remainder

Admissible uses: (1) to fill in gaps (i.e. to supplement the terms of the agreement) and (2) to resolve ambiguities (i.e. to explain terms of the agreement) Inadmissible uses: to contradict the express terms of the parties' contract Note, however, that course of performance evidence is uniquely available to: establish a waiver or modification of express terms. In the event of a conflict, course of performance prevails over course of dealing and usage of trade, and course of dealing prevails over usage of trade. In a UCC case, trade usage, course of dealings, and course of performance can supplement a completely integrated agreement.

Contra Proferentem and the Doctrine of Reasonable Expectations Trade Usage, Course of Dealing, and Course of Performance Distinguishing admissible uses of such evidence from their inadmissible uses:

Course of dealing is a pattern of conduct concerning previous transactions between the parties that is fairly to be regarded as establishing a common basis of understanding for interpreting their subsequent expressions and other conduct. Course of dealing trumps trade usage.

Contra Proferentem and the Doctrine of Reasonable Expectations Definitions under the UCC: course of dealing

Course of performance is present when a particular contract involves repeated occasions for performance by a party and the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection. Course of performance can establish waiver or modification of express terms of the contract. Course of performance trumps usage of trade and course of dealing.

Contra Proferentem and the Doctrine of Reasonable Expectations Definitions under the UCC: course of performance

Usage of trade is any practice or method of dealing having such regularity of observance in a place or trade as to justify an expectation that it will be observed with respect to the transaction in question.

Contra Proferentem and the Doctrine of Reasonable Expectations Definitions under the UCC: usage of trade

Unambiguous boilerplate terms may be interpreted against the drafting party if they conflict with the reasonable expectations of the other party. Doctrine does not apply to dickered terms. Types of contracts subject to this doctrine: -- insurance contracts -- any contract of adhesion

Contra Proferentem and the Doctrine of Reasonable Expectations The Doctrine of Reasonable Expectations

If an ambiguous term is included in the contract, then: in case of doubt *it is construed against the drafter* Types of contracts subject to this rule of construction: *all contracts principally drafted by one of the parties*, whether an adhesion contract or one between parties of equal bargaining power.

Contra Proferentem and the Doctrine of Reasonable Expectations The Rule of Contra Proferentem

Trade usage, course of dealing, and course of performance are extrinsic evidence that can be used to both fill gaps and resolve ambiguities in contracts. However, express terms of the contract still trump both course of dealing and trade usage.

Contra Proferentem and the Doctrine of Reasonable Expectations Trade Usage, Course of Dealing, and Course of Performance

In the case of *a contract for necessaries*: the mentally incompetent can disaffirm the contract, but the provider of the necessaries can recover in quasi-contract for the reasonable value of goods or services rendered. An addition to the list of necessaries: legal representation in connection w/ incompetency procedures.

Contract for Necessaries w/ Mentally Incompetent Party

Conversion arises where the defendant exercises dominion and control that causes the destruction of or a serious substantial interference with plaintiff's chattel. a. Elements: (1) Intent (2) Dominion and control (3) Substantial interference

Conversion

If someone buys stolen goods, they may be sued for conversion.

Conversion Bona fide purchaser for value

As with trespass to chattels, mistake is not a defense to conversion. Defendant is liable even though he did not intend or recognize the legal significance of his act.

Conversion Intent:

Typical remedy is forced sale - converter must pay FMV of chattel at the time of conversion. Replevin: Action brought by the plaintiff to get back personal property.

Conversion Remedies and damages

The specific fraudulent intent to steal may be negated by: an honest belief of claim of right or, by an intent to restore the exact property. A defendant who converts property but intends to later substitute it for equivalent property is guilty of embezzlement.

Conversion Defense

Seisin (a) Promise by the grantor that they actually own the property Right to convey (a) Promise by the grantor that they have the power to convey it Covenant against encumbrances (a) Promise by the grantor that there are not encumbrances either visible or invisible on the property Do not run with the land, can only be breached at the time of closing.

Covenants of Title Contained in General Warranty Deeds Present Covenants

Property is transferred to more than one person to be held jointly. At common law: A conveyance to two or more people to jointly own property was presumed to create a joint tenancy unless specifically stated otherwise. Under modern majority rule: A conveyance to two or more people to jointly own property is presumed to create a tenancy in common unless specifically stated otherwise. To specifically state otherwise: You must use language to demonstrate that you want the right of survivorship to exist.

Cotenancy - common law v. modern presumptions

A counterclaim is how a party being sued returns fire. Usually the party being sued is a defendant and is returning fire against the plaintiff, but any party being sued can return fire with a counterclaim. Thus, if a defendant files a counterclaim at the plaintiff, the plaintiff may fire a claim back at the defendant, thus filing a counterclaim to the counterclaim. Similarly, if a defendant files a cross claim or impleader claim (both discussed shortly), the parties defending themselves against those claims can return fire against the defendant.

Counterclaims (Rule 13(a), (b))

A counteroffer constitutes: a rejection while also creating a new offer. Mere Inquiry Rule: an offeree may test the waters by making a mere inquiry about the offeror's willingness to negotiate without creating a counteroffer and terminating the power of acceptance "Would you be willing to consider a lower offer?"

Counteroffer

Quiet enjoyment (a) Promise by the grantor that the grantee will not be disturbed by a third party asserting a valid claim to the land Warranty (a) Promise by the grantor that they will defend the grantee against any third party claim Further assurances (a) Promise by a grantor that he will do everything reasonably necessary to perfect the grantee's title Run with the land, breach can be at the time of closing or afterwards.

Covenants of Title Contained in General Warranty Deeds Future Covenants

A covenant must give notice to successors in servient interest for it to remain effective. Notice may be inquiry notice, actual notice, or constructive notice. Actual Notice: what the servient estate taker knows Constructive Notice: the servient estate could look up records and find that the covenant had been recorded Inquiry: servient estate learns enough information that would lead a reasonable person to inquire further but they failed to do so.

Creation of Covenants Notice

*Horizontal Privity - K created* Relationship that exists between the original covenantor and convenantee Requires privity of contract in connection with the land. 1) Landlord/tenant 2) Grantor/grantee 3) Mortgagor/mortgagee This part is a contract about the covenant. *Vertical Privity - K given entirely to new successors* Privity of estate - the relationship between the original party and a successor in interest. For the covenant to run with the land is must be a transfer of the ENTIRE interest to the new owner.

Creation of Covenants Privity

(1) Servient estate: restriction must reduce the use and enjoyment of the servient estate (2) Dominant estate: increase the use and enjoyment of the dominant estate

Creation of Covenants Touch and Concern the Land

Vertical privity is privity of estate between successors in interest to the estate. In order for the burden to run, privity estate will only exist when the holder of the servient estate transfers all of his or her interest in the servient estate to the new owner.

Creation of Covenants What kind of vertical privity is required?

Easements can be created expressly, by implication, or by prescription.

Creation of Easements

Intended the restriction to run to future landowners.

Creation of Equitable Servitudes Intent to run

Current owner of the servient estate took with notice Notice goes to successors in interest on the burden side Actual, constructive, or inquiry

Creation of Equitable Servitudes Notice

The Statute of Frauds applies to both covenants and equitable servitudes and therefore the interests must be in writing to be enforceable. Does not apply to implied reciprocal servitudes.

Creation of Equitable Servitudes Statute of Frauds

Burden must run with the servient estate, benefit must run with the dominant estate.

Creation of Equitable Servitudes Touch and concern the land:

The property does not automatically revert back to the grantor on some condition, instead, the grantor must do something affirmative to retake the property. EXAMPLE: "A to B, provided that B uses the premises for residential purposes, but if he does not do so, A may reenter." If B ever stops using the premises for residential purposes, A or A's heirs can enter and retake the property.

Creation of Power of Termination (Right of Reentry)

Automatically created in the grantor, no specific language must be used. Creation of fee simple determinable automatically creates the possibility of reverter. EXAMPLE: "To A so long as A uses the property for residential purposes." Presume a fee simple determinable since durational language is used. As soon as the instrument is exercised, the possibility of reverter is automatically created. If A stops using the property for residential purposes, the property automatically reverts back to the grantor.

Creator of Possibility of Reverter

Grantor can sue grantee for reimbursement

Transfers by Mortgagor - who's on the hook for mortgage? Rights of the grantor against the grantee if there has been an assumption. If the grantor makes payments following the transfer:

For Miranda Custody is formal arrest, or a situation where a reasonable person in the suspect's position would believe their *freedom has been deprived* to a degree analogous to formal arrest. *Custody* requires an objective indication that police are initiating criminal process, for example being taken to the station for booking. The subjective intentions of the officer are not controlling—custody is *assessed objectively* from the perspective of the suspect. A Terry Stop is not custody because it is defined as a brief investigatory stop. Therefore, police may question an individual during a Terry Stop w/o Miranda warning.

Custody

Defendant loses an otherwise available qualified privilege if: (a) Defendant acts out of malice, knows accusation is false or is recklessly about truth or falsity of statement. (b) Excessive publication. Gives greater leeway to speech, but qualified because they can be lost.

Defamation Qualified Privilege

In addition to the defendant who originates the defamatory message, other persons who repeat it may be liable to plaintiff, varying according to their relationship to the original publisher. Such republication may also increase the originator's liability to plaintiff.

Defamation Republication Rule:

1. Is it defamatory? 2. Pleading issues 3. Publication 4. Liable or slander 5. Common law privileges 6. First Amendment Issues

Defamation Checklist

A message is defamatory if it subjects the plaintiff to hatred, ridicule, contempt, or scorn OR deters others from dealing with the plaintiff, causing reputational harm The statement must be one which can be believed to be truthful and reputation-harming. (1) hyperbole is not defamatory (2) mere opinion cannot be defamatory Must be defamatory in the eyes of a reputable group.

Defamatory message

At least 90 days before trial, each party who plans to rely on expert testimony must disclose to all other parties the name and contact information of the expert, as well as the expert's final report. The report must explain the expert's qualifications, her opinion, and the information on which she relied.

Discovery Expert Disclosures

If defendant does not respond to a properly filed and served process, they are subject to a default judgment. Default judgments involve two steps: a. the entry of default; and b. the entry of the default judgment Only after a default has been entered may a default judgment issue. How a default judgment issues depends on the nature of the plaintiff's claims.

Default Judgments

A defeasible estate is an estate that may terminate upon a condition, durational limit, or is subject to an executory interest.

Defeasible Estates

a. desires to confine or restrain plaintiff to a bounded area OR b. knows that such confinement is virtually certain to result c. Motive is irrelevant.

Defendant has the requisite intent for false imprisonment if he:

Will generally always be presumed if the transfer is beneficial to the grantee. If the grantee refuses to accept the conveyance there has been no transfer of property.

Deed must be accepted by the buyer.

Occurs where a mortgage is executed and a third party holds onto deed until the mortgage has been completed paid off. Creditor receives security of knowledge that debtor can't recover deed until the debtor pays the debt. Third person is trustee and creditor is beneficiary.

Deed of Trust

Must be in writing. Four requirements of a valid deed: 1) Sufficient identification of the parties 2) Words indicating intent to make a present transfer of the property 3) Sufficient description of the property 4) Grantor's signature

Deed sufficient to satisfy the Statute of Frauds.

Where an absolute privilege applies, defendant may not be held liable for an otherwise defamatory message as a matter of law. APPLIES TO (a) Communications between spouses (b) Statements made on the floor of a legislature (c) Statements made between high ranking officials (d) Statements made in the conduct of judicial proceedings Privilege ends if someone repeats the defamatory statement in a non-privileged situation.

Defamation Absolute Privilege

a. Truth b. Absolute Privilege c. Qualified Privilege

Defamation Common law Privileges

When the defendant's actions alone cause the harm, the defendant's act is the direct cause. It is very likely that the defendant will be held legally responsible. In indirect cause situations, the other force that combines with the defendant's act to bring about the harm is called an intervening cause. To relieve the defendant of liability and thus, in effect, break the chain of proximate cause, the other force must be a superseding intervening cause.

Direct v. Indirect Cause

Look at the subject matter and determine whether it is of public or private concern. Consider form, content and context. (1) If it's a matter of public concern: If you are willing to prove your reputational harm (actual damages), the state can set any standard of fault it wants as long as it does not impose strict liability. Most states use negligence. Presumed or punitive damages require actual malice. (2) Private concern: Plaintiff does not have to prove actual malice to prove presumed or punitive damages; unclear from SCOTUS what is required.

Defamation Private figure plaintiff

Due process clause limits the amount of punitive damage awards The U.S. Supreme Court has held that the due process clause usually limits punitive damage awards to less than 10 times the size of the compensatory damages awarded [State Farm v. Campbell, 538 U.S. 408 (2003)]. The Court did so by stating, in relevant part, ""...in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages to a significant degree, will satisfy due process."

Damages Punitive Damages Due Process

There must be a cognizable injury. (1) Personal injury and property damages are recoverable. (2) Nominal damages are not available, and punitive damages generally are not allowed.

Damages A plaintiff must:

EXAMPLE: Grantor gives the deed to X, the third party, and says, "X, give this deed to grantee when I die." Courts say that you have automatically created a life estate, with whoever you picked to inherit as remainderman. Thus, it is not a death delivery - it's a present transfer.

Death escrow

1. Justification Defenses: A justification establishes that what is normally unlawful was not unlawful under the particular facts of the case, and thereby nullifies the "reus" of crime. Justifications include self-defense, defense of others, defense of property, and necessity. All justification defenses turn on one ultimate question: Was it truly necessary for the defendant to take the law into her own hands and commit an act that is normally unlawful? NO OTHER OPTION 2. Excuse Defenses: An excuse "forgives" the defendant for committing an unjustified crime because of some disturbance of the defendant's mental process, and thereby nullifies the culpability for the crime. a. Excuses include insanity, involuntary intoxication, and duress. All excuses turn on one ultimate question: Was defendant's mental process overwhelmed to the point that it is unfair to hold him accountable for the crime? MIND SO DISTURBED UNFAIR TO HOLD ACCOUNTABLE

Defense fall under two broad categories:

a. Reasonable non-deadly force is justified in defending one's property from *theft, destruction, or trespass* where: (1) The defendant has a *reasonable belief* that the property is in immediate danger, and (2) *No greater force than necessary* is used. This means that the use of non-deadly force is improper where a request to desist would suffice. b. Deadly force: may never be used to merely defend property. (1) Trap guns or mechanical devices that cause *death or grievous bodily harm are per se excessive* and unlawful. (2) Remember, however: *deadly force may be used where the defender reasonably believes the threat to property involves an imminent threat to life* (like confronting a burglar in a home in the middle of the night).

Defense of Property

Defense of a third person is justified when: necessary to defend a third person who is facing an unlawful imminent threat of bodily harm. Like selfdefense, homicidal defense of others is justified only when the threat is one of imminent death or grievous bodily harm. (1) *The majority rule:* Did the defendant make a reasonable judgment that the person protected was the victim of unlawful violence. If the third person is also the aggressor or a felon resisting lawful arrest, and the defendant reasonably but mistakenly uses force against the victim to protect that third party, the defendant may nonetheless claim the justification of defense of others. (2) *The minority rule:* The defendant "steps into the shoes" of the person protected. Therefore, if the person protected was the first aggressor, or failed to retreat when required by law, the defendant has no defense, even if he had no idea the person defendant had no individual right to claim self-defense.

Defense of a Third Person

Remember POPCANS Privilege Others Property Consent Authority Necessity Self-defense

Defenses and Privileges to Intentional Torts

(1) Felony: A police officer can arrest a person who the police officer reasonably believes committed a felony. (2) Misdemeanor: A police officer can only arrest for misdemeanors that constitute a breach of the peace. (3) Private individuals: Private individuals act at their own peril. If they are wrong they are liable for torts committed.

Defenses and Privileges to Intentional Torts Authority - Arrest

If defendant is charged with maintaining discipline (e.g., a parent or teacher), he may use reasonable force to perform this duty.

Defenses and Privileges to Intentional Torts Authority - Discipline

A defendant/shopkeeper is not liable for false imprisonment or a related tort if: (1) he has a reasonable suspicion that plaintiff has stolen goods, (2) uses reasonable force to detain the person, and (3) detains plaintiff for a reasonable period and in a reasonable manner, (4) on the premises or in the immediate vicinity.

Defenses and Privileges to Intentional Torts Authority - Shopkeeper's Privilege

If the plaintiff consents to any intentional tort there is no recovery for damages for any intentional tort. Consent is a total defense. Plaintiff can manifest consent expressly, by implication, or as a matter of law.

Defenses and Privileges to Intentional Torts Consent

Defendant is entitled to defend another person from an attack by the plaintiff to the same extent that the third person would be lawfully entitled to defend himself from plaintiff.

Defenses and Privileges to Intentional Torts Defense of Others

Defendant is permitted to use reasonable force to prevent plaintiff from committing a tort against defendant's property. A defendant may never use deadly force to protect personal or real property. Look for situations that escalate from defense of property to defense of others or self-defense. One may use reasonable force to eject a trespasser from personal property after asking them to leave.

Defenses and Privileges to Intentional Torts Defense of Property

the plaintiff is mistaken as to what exactly they're consenting to. Mistake must go toward the consequences of the act and not a collateral part of the act.

Defenses and Privileges to Intentional Torts Mistake can ruin consent when:

Defendant is permitted to injure plaintiff's property if it is reasonably necessary to avoid a substantially greater harm to the public, to himself, or to his property. Public necessity Private necessity

Defenses and Privileges to Intentional Torts Necessity

Express consent exists where plaintiff affirmatively communicates permission for defendant to act. (a) Limitation: exceeding consent reasonably given. Implied consent arises where a reasonable person would interpret plaintiff's conduct as evidencing permission to act. (a) Limitation: cannot exceed consent that might be implied from conduct.

Defenses and Privileges to Intentional Torts Plaintiff can manifest consent expressly, by implication, or as a matter of law.

Arises where defendant commits an intentional tort and it is better that the tort was committed than risk the consequences. Private necessity (unlike public necessity) is not a complete defense. Defendant will be liable for any harm caused during the exercise of the privilege.

Defenses and Privileges to Intentional Torts Private necessity

One may use reasonable non-deadly force to get back one's personal property provided that a request is made for its return or the request would be futile, and that the defendant is in hot pursuit. The use of reasonable force against another for the purpose of reception of a chattel is privileged if the other: (1) has tortiously taken the chattel from the actor's possession without claim of right; (2) has otherwise tortiously taken the chattel from the actor's possession and is about to remove it from the premises; or (3) has received custody of the chattel from the actor and refuses to surrender it or is about to remove it from the actor's premises. Under the majority view, the actor may recapture a chattel only where the original taking was wrongful.

Defenses and Privileges to Intentional Torts Recapture of chattels:

Arises where a defendant honestly and reasonably believes that she used reasonable force to prevent plaintiff from engaging in an imminent and unprivileged attack. Defendant only need be reasonable and must respond with proportionate force. Once the threat is over the defense will not work. There must be an imminent existing threat and responds accordingly.

Defenses and Privileges to Intentional Torts Self-Defense

a. Express assumption b. Implied assumption Assumption of the risk is a subjective focus: Did the Plaintiff KNOW and COMPREHEND the risk, and thus voluntarily expose himself to that risk?

Defenses to Negligence Assumption of Risk

A plaintiff has an obligation to take reasonable steps after injury not to exacerbate the injury. Often arises where plaintiff does not wear a seatbelt or a motorcycle helmet and suffers increased damages as a result.

Defenses to Negligence Avoidable consequences:

For both: defendant has the burden of proof to show that the plaintiff's conduct was unreasonable and fell below the relevant standard of care and was a cause in fact of plaintiff's own injury The determination of the legal effect of the plaintiff's own negligence depends on the jurisdiction. For the MBE, assume you are in a pure comparative fault jurisdiction where joint and several liability applies unless you are told otherwise

Defenses to Negligence Contributory Negligence and Comparative Fault

Abandonment, legal impossibility, (not) factual impossibility

Defenses to attempt

Evidence which tends to make the existence of any fact more or less probable than it would be without the evidence

Definition of Relevant Evidence (Rule 401)

The general rule: all contractual duties are delegable EXCEPTIONS -- (1) The performance in question is for personal services (2) The contract prohibits delegation

Delegable Duties

A delegation occurs when a third party agrees to satisfy the performance obligation owed by one of the parties to a contract.

Delegation of Duties

Delivery exists if the grantor has the mental intent that the property transfer from the grantor to the grantee. It's a state of mind. Grantor will do one of three things with the deed: 1. *Gives it to the grantee* This act creates a rebuttable presumption of delivery. This presumption may be rebutted by extrinsic evidence that shows the grantor did not intend for there to be a present transfer. Cannot allow oral consideration on delivery bc of parol evidence rule. 2. *Grantor retains the deed* This creates a rebuttable presumption of no delivery. This presumption can be rebutted through extrinsic evidence that shows a delivery was intended. 3. *Give a deed to a third party (escrow) who will give it to the grantee*

Delivery of the deed.

prepared in anticipation of trial to assist jury or fact-finder in understanding the facts which are at issue in the case. EXAMPLE: Needle tracks, power point presentations, photo enlargements.

Demonstrative evidence:

A product is in a defective condition unreasonably dangerous when it is more dangerous than would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

Design defects Ordinary Consumer Expectation Test:

Dormant Commerce Clause: states cannot discriminate against out-of-state economic actors. EXCEPTIONS: (1) Congress approves -- Congress may affirmatively authorize states to legislate in areas that would violate the Dormant Commerce clause. (2) Market participant doctrine -- if the state is not regulating private individuals but the state is acting as a market participant, they may discriminate between in-state and out-of-state businesses. The dormant commerce clause applies to state taxes.

Dormant Commerce Clause

(Strict Scrutiny) (1) the regulation serves a compelling interest; and (2) the regulation is necessary to the compelling interest

Dormant Commerce Clause If a state law discriminates on its face against out-of-state goods or economic actors, the state must show:

(1) The regulation serves an important state interest; and (2) The burden on interstate commerce isn't excessive in relation to the interest served (balancing test)

Dormant Commerce Clause If a state law merely incidentally burdens interstate commerce, the state must show:

(1) The defendant's age, health, education, intelligence, gender, cultural background; (2) The location and duration and conditions of the interrogation (3) Number and demeanor of police officers, suspect's experience with the criminal justice system; (4) Deception and trickery Police deception and trickery during interrogation is just one of the factors to assess pursuant to the totality of the circumstances test, and rarely in and of itself renders a statement involuntary Coercion can take the form of physical *abuse*, psychological *pressure*, or *threats* of future harm for failing to answer questions.

Due Process *Factors of coercion* include:

*Element #1: Threat* A threat is a manifestation of intent to inflict harm on the other person, made in words or by conduct EXAMPLE: An example of conduct considered a threat is the scene in "The Godfather," where the man wakes up with a horse's head in bed, which was placed there to induce him to sign the contract. *Element #2: The threat is wrongful in nature* Three types or circumstances: (a) If what is threatened is either a crime or tort. (b) If what is threatened is a criminal prosecution or bad faith civil process. (c) If what is threatened is a bad faith breach of contract, i.e., economic duress MINORITY JURISDICTIONS - add another element to the requirements for "economic duress": the aggrieved party must protest the threatened breach rather than acquiesce without complaint to the wrongful threat EXAMPLE: Sailors on a fishing voyage cease their work midway through the voyage and refuse to resume their duties unless the captain agrees to give them a raise. *Element #3: No reasonable choice but to succumb to the threat*

Duress

Duress occurs where a defendant reasonably believes committing a crime is the only way to avoid an unlawful threat of death or grievous bodily harm. Duress excuses all criminal conduct, except murder (but still excuses the "felony" part of felony murder). Duress is almost always a human threat rather than a natural threat.

Duress

This is seldom an issue when what is threatened is a crime or a tort, a criminal prosecution, or a bad faith civil suit. No reasonable choice under "economic duress" (i.e., threatened breach of contract) and commonly arise in these three situations: (a) *Situation #1: when there are no adequate and reasonably price substitutes for the services or goods that are threatened to be withheld.* EXAMPLE: The ship's captain is not in a position to find replacement sailors when already at sea, so no adequate substitutes would be available. (b)* Situation #2: when the threatened breach would cause the aggrieved party to break his own contracts.* EXAMPLE: A purchaser of upsidaisium bearings used in the manufacture of turbo-jet engines would, on account of the breach, be forced to breach its contract with an aircraft manufacturer. (c) *Situation #3: when the alternative of acquiescing to the threat and then suing for damages is inadequate to address the harm caused* EXAMPLE: where the threatened breach would cause the aggrieved party to renege on its own commitments and thus harm its reputation and opportunities for future business, damages would be inadequate as a remedy

Duress - No reasonable choice but to succumb to the threat

Two requirements: 1) Common ownership of dominant and servient estate prior to severance; and 2) Strict necessity

Easement by Necessity

Because a Miranda violation does not trigger the fruit of the poisonous tree doctrine, a statement made in violation of Miranda normally does not taint the admissibility of a subsequent statement that complies with Miranda even if it repeats the inadmissible statement. However, police may not employ a "question first, warn later" tactic to deliberately bypass the effect of Miranda warnings. if the police deliberately elicit a confession from a suspect during custodial interrogation without obtaining a valid Miranda waiver, and then elicit a Miranda waiver in the middle of questioning or immediately following questioning and have the suspect repeat the confession that waiver will be considered invalid and both confessions will be inadmissible.

Effect of a Miranda violation on subsequent confessions

Embezzlement is the statutory crime defined as: (1) the fraudulent conversion or misappropriation; (2) of the property of another; (3) by one who is already in lawful possession. Conversion is some action toward property (such as selling, consuming, pledging, donating, discarding, heavily damaging, or claiming title to it), which seriously interferes with the rights of the owner. Slight movement or limited use, for instance, would not suffice. Conversion is not fraudulent if the defendant honestly believed he had a right to so use the property.

Embezzlement

The general rule is that a person who bestows benefits without request from the benefitting party is considered an officious intermeddler who will not be entitled to any recovery. However, an exception applies to doctors and other healthcare professionals who provide emergency healthcare to a patient who is unable to consent.

Emergency Benefits Conferred by a Health Care Professional

a. An employer is liable for injuries caused by the negligence or strict liability of an employee if the tortious act occurred within the scope of employment b. Employers can seek indemnity from employee but rarely do so. c. Employers can be directly liable if they are negligent in hiring. d. Intentional torts committed by an employee are generally not given respondeat superior effect, even if committed during working hours. Exception: If an employee uses force, even misguidedly, wholly or partly to further the employer's purpose, such use of force may fall within the scope of employment, resulting in vicarious liability of the employer.

Employer/Employee (Respondeat Superior)

When a land-sale contract is formed, at that point there is a bifurcation of title. a. Equitable title: passes to the buyer b. Legal title: remains with the seller until the deal closes and the seller is under a fiduciary obligation to close the sale

Equitable Conversion

Right automatically exists in interest of equity—can't be taken away, can't clog equitable right of redemption. When a mortgage arrangement is made, the right automatically exists and cannot be taken away Exists any time up until there has been a foreclosure sale—up to sale, can redeem by paying off debt or bringing current, if allowed. As soon as foreclosure sale, no more equitable right.

Equitable Right of Redemption

. A voucher program that allows parents to send their children to parochial or religious schools with state aid instead of to failed public schools is allowed. The aid is neutral with respect to religion to a broad class of citizens, defined without reference to religion, and parents direct aid to religious schools as a result of their own independent and private choice. .

Establishment Clause Government Aid to Religious Schools Voucher program

What does it mean to say that a statutory or constitutional provision is "on point"? This is ultimately a question of interpretation—whether constitutional or statutory. If a valid Federal Rule of Civil Procedure says, "Lawsuits involving the rights of minors shall be sealed from public view," then a lawsuit involving the right of a 13 year old should obviously be sealed from public view—regardless of whether state law says that such suits should be open to public view. Not every question can be resolved so easily, however. Take, for example, a Supreme Court case on this issue. P sued D in a diversity case. State law declared that tort suits must be commenced within 2 years of the injury, and further specified that a suit is commenced when the defendant is served with process—not when the complaint is filed. This was a problem for P, who filed his suit before the 2-year mark but did not have the defendant served before the 2-year mark. When D sought dismissal of the action, P sought refuge in the Erie doctrine. P argued that Federal Rule of Civil Procedure 3, which says that a "civil action is commenced by filing a complaint with the court," was "on point" and thus controlled the matter, regardless of what state law says. The Supreme Court disagreed, holding that, even though Rule 3 used the term "commence," the Rule does not pertain to when lawsuits are begun but rather how a lawsuit is begun (i.e., by filing a complaint).

Erie Analysis Step 1: Do What Congress or the Constitution Says On Point

. A valid federal rule does not abridge, enlarge, or modify any substantive constitutional right. .

Erie Analysis Step 1: Do What Congress or the Constitution Says What is a valid statute?

If there is no valid federal statutory or constitutional law on point, the federal court should follow its ordinary practices (whether rooted in case law, written policy, informal practice, or simply habit) UNLESS doing so would lead to: (a) either a preference for one court system over another (forum shopping) or (b) fundamental unfairness. If Step 2 instructs the court to apply state law, the state law is called "substantive," regardless of its true nature. And if Step 2 instructs the court to stick with ordinary federal practice, that practice is called "procedural," regardless of its true nature.

Erie Analysis Step 2: If There Is No Federal Statutory or Constitutional Law on Point, Do What Would Avoid Unfairness and Forum Shopping

EXAMPLE: P sued D in federal court in a state law negligence action. As the trial is about to start, P politely asks the federal judge to put on an old-fashioned, powdered wig. State law requires state judges to wear such wigs, P explains, and because this is a diversity case, the federal judge must follow state law unless a federal statute or constitutional provision instructs otherwise. Since no federal statute or constitutional provision tells the judge how to dress for trial, P argues, the judge must follow state law and put on the wig. EXAMPLE: P sues D in federal court in a state law medical malpractice action. D moved to dismiss because the plaintiff failed to present her grievance to a state board before filing suit. State law, as part of an effort to deter spurious med mal claims, requires med mal plaintiffs to first present their claim to a board of physicians and lawyers familiar with med mal law. Plaintiffs who fail to take this step must, under state law, have their claims dismissed. Because P did not take this step, D argues, her suit must be dismissed. (1) The easiest way to understand these concepts is by comparing two examples. (2) If Step 1 represented the entirety of the Erie doctrine, the federal judge in these cases would wear the wig in the first suit and dismiss the med mal claim in the second suit. After all, no federal statute or constitutional provision instructs otherwise. But because of Step 2, the judge would not wear the white wig but would dismiss the med mal case. The analysis is as follows:

Erie Analysis Unfairness / Forum Shopping

Although the Supreme Court refers to forum shopping and unfairness as two separate elements, unfairness is functionally subsumed into forum shopping. That is, parties shop for forums that can give them an advantage; this advantage is what the opposing party would refer to as "unfair." Thus, a finding of forum shopping will mean necessarily carry with it a finding of unfairness.

Erie Analysis Unfairness and forum shopping have collapsed.

. Federal Rules are statutes themselves, but they are drafted by the judicial branch and approved by Congress. No Rule has ever been held to "abridge, enlarge or modify any substantive right." So if you see a Federal Rule that you are familiar with, it almost certainly is valid under this test and ought to be applied. .

Erie doctrine - Validity of Federal Rules of Civil Procedure

there will be no transfer of title through the escrow. Must be express!

Escrow - If the grantor expressly retains the right to reclaim the deed from the third party

(1) A city can include a crèche in a Christmas display in a park. It is for a secular purpose. The city is just trying to celebrate a holiday, especially where there is also a Santa Clause and candy canes. It is not religious. (2) A city may grant a license permitting a private group to put up a cross in a city park near a statehouse. (3) Placement of the Ten Commandments on the walls of courthouses is unconstitutional because there is no secular purpose. (4) Posting the Ten Commandments as a monument along with many other monuments surrounding the State Capitol will not violate the Establishment Clause. Religion can be included as one of many elements, but it cannot be the sole focus. (5) Sunday closing laws have been held constitutional because there is a secular purpose. It is good to have a day of rest. (6) Delegation of authority to religious organizations is unconstitutional.

Establishment Clause Examples of OK/Not OK Government Endorsement of Religion

The state can provide money to both public and private schools for: (a) secular textbooks; (b) standardized secular exams; (c) school lunches; (d) library media materials and computers (e) interpreters for deaf students; and (f) Providing bus fare for both public and private (including some religious) schools has been found to be constitutional. If a tax deduction is given to all parents based on actual expenditures for children attending any public, private, or religious school, it will be upheld.

Establishment Clause Government Aid to Religious Schools

The states can fund the salaries of secular teachers in religious universities because it assumed their professional norms will prevent them from engaging in religious indoctrination. .

Establishment Clause Government Aid to Religious Schools University level

. If the government has a sex education program where it gives funding to both secular and religious organizations to carry out the program, it will be held constitutional. .

Establishment Clause Providing Public Services Through Religious Institutions

1) An Alabama law authorizing a period of silence "for meditation or voluntary prayer" because the legislature's motive was to encourage prayer. 2) Posting the Ten Commandments on the walls in public school classrooms. 3) A public school sponsoring a rabbi or other cleric to conduct even a non-denominational prayer as part of a graduation ceremony. a) A state legislature may employ a chaplain to conduct an opening day prayer. 4) Prayer before a high school football game. (b) A religious club holding its meetings in a public school does not violate the Establishment Clause.

Establishment Clause Religious Activities Conducted at Public Schools The following practices in public schools have been held to be invalid:

Where a government program prefers one religion, or one religious sect, over others, strict scrutiny analysis will be applied. Where the legislation or government program is neutral on its face, the Supreme Court will follow the three-part test under Lemon v. Kurtzman: (1) the statute must have a secular legislative purpose; (2) the principal or primary effect or purpose must neither advance nor inhibit religion; and (3) the statute must not foster an excessive government entanglement with religion.

Establishment Clause - level of scrutiny and three-part test

Applies to a situation where someone transfers title to property that they do not have, but then later acquires title to. (1) Majority Rule: grantor transfers title to property he doesn't own at the time, but he later acquires title to it. If previous grantee goes into court and asserts his claim to property, grantor is estopped from denying it to him. Previous grantee has to go to court to assert title (2) Minority Rule: employ the operation-of-law theory - title automatically passes to grantee by operation of law

Estoppel by deed:

In a criminal or civil case in which the defendant is accused of child molestation or sexual assault, specific acts of the defendant are admissible to show propensity. Specific acts do not need to have been tried - just allegations which meet preponderance of the evidence. The prosecutor give 15 days notice to the defendant before trial. May occur after this only for good cause. Notice must include witnesses' statements or a summary of the expected testimony.

Evidence of Similar Crimes in Sexual Assault and Child Molestation Cases (Rules 413-415)

There are two ex post facto clauses in the Constitution that prevent both the state and federal governments from passing retroactive criminal laws. In general, a statute violates the ex post facto clause if it: (1) makes criminal an act that was not a crime when committed; (2) prescribes greater punishment for a crime after its commission; (3) decreases the amount of evidence required for conviction; or (4) extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired.

Ex Post Facto Laws (OL VIII. B.)

a. The court (the judge) on its own motion may: call witnesses and all parties may examine any witness called by the court b. The court may also: interrogate/question any witness called by a party

Examination of Witnesses Calling and Interrogation of Witness by Court (Rule 614)

The judge (the court) shall control the examination of witnesses and presentation of evidence to effectively ascertain the truth and prevent harassment of witnesses. The court also determines: (1) what type of technology may be used; (2) whether jurors can ask questions. Permissible in federal court.

Examination of Witnesses Mode and Order of Examination of Witnesses and Presentation of Evidence (Rule 611)

(1) the witness is afforded an opportunity to explain or deny the evidence at some point during the trial (2) opposing counsel is afforded: an opportunity to interrogate the sponsoring witness, unless the "interests of justice" require otherwise (3) If the witness DENIES making the PINS, extrinsic evidence is generally admissible TO IMPEACH. (4) If the witness ADMITS making the PINS, the witness has the right to explain their answer.

Examination of Witnesses Prior Statement of Witness (Rule 613) Foundation requirement: Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided:

On direct, the examiner may jog the witness's memory (i.e., the forgetful witness). (1) Give a copy to the judge and opposing counsel. (2) Mark it as an exhibit for identification only. (3) Ask witness to silently read the document. (4) Take back the writing. (5) Ask witness to testify independently of the writing. Key points (1) The proponent MAY NOT introduce the writing into evidence, therefore hearsay and best evidence rule don't apply. (2) Authentication of any written evidence used to refresh is not required. (3) Can be ANY type of evidence NOT past recollection recorded (FRE 803(5)) --- that's substantive use

Examination of Witnesses Writing Used to Refresh Memory (Rule 612)

(1) may inspect; (2) cross-examine with it; (3) show writing to the jury for comparison (with witness's testimony); (4) introduce relevant portions into evidence ONLY to IMPEACH.

Examination of Witnesses Writing Used to Refresh Memory (Rule 612) Rights of adverse party (opponent):

(a) Motive: The defendant wanted to kill that person b/c they were the only witness of another crime (b) Intent: someone who had drugs was using them to sell, because in the past, they dealed drugs (c) Absence of Mistake: Man calls the police to say his wife had drowned in the bathtub. The police found that this man had two previous wives who drowned in the bathtub. (d) Identity: Buffalo Bill killed young plus sized women and removed their skin dumping their remains in the river days later after placing a cocoon in their mouth. This evidence is used by the prosecution in a homicide case with similar facts. (e) Common Plan or Scheme: Turning on the facet after a burglary

Examples for MIMIC

Defects may include: (a) an unpaid mortgage or lien, (b) a covenant or an easement that restricts use of land, (c) title acquired by adverse possession until the adverse possessor quiets title; or (d) an existing condition on the land that violates a zoning ordinance

Examples of Defects on Title

Under the common law mailbox rule: acceptance by mail is effective upon dispatch, so long as the acceptance is effectively posted (i.e. address and name are correct) The mailbox rule applies only to acceptances and not to any other communication between contracting parties. Thus, offers, revocations, rejections, and counteroffers are all effective only upon receipt of the other party. Consequences of the rule: 1. The offeror may not revoke an offer once acceptance has been dispatched. 2. Once the offeree dispatches acceptance, the parties have a binding contract and the offeree may not withdraw acceptance. 3. The offeror is bound even if the acceptance is lost in transit, if there is proof of dispatch. The mailbox rule applies to any means of transmission that involves a foreseeable delay between dispatch and receipt.

Exception to rule that acceptance be communicated - Acceptance by Mail or other correspondence - common law

Acceptance is effected only by completing performance. Communication is typically not required for formation, unless the offeror provides otherwise.

Exception to rule that acceptance be communicated - The Unilateral Contract - common law

Evidence with a "but for" link to a constitutional violation (poison tree) may still be admitted if the government can prove applicability of one of three exceptions: Independent source Inevitable discovery Attenuation Other Limitations to the Exclusionary Rule Impeachment

Exceptions to Fruit of the Poisonous Tree exclusion.

A promise to increase compensation under an existing contract is enforceable as a mutual modification if: 1. both parties agree to a performance that is different from the one require by the original contract, and, 2. the difference in performance is not a mere pretense of a newly formed bargain

Exceptions to the Preexisting Duty Rule Mutual Modification

The preexisting duty rule will not apply if: a promise of increased compensation is given in exchange for a promised performance that has been rendered substantially more burdensome than reasonably anticipated by the parties when they entered the contract

Exceptions to the Preexisting Duty Rule Unforeseen Circumstances

PART PERFORMANCE A showing of some combination or all three of the following must be made: (a) payment of all or part of the purchase price; (b) taking of possession; (c) making substantial improvements. ESTOPPEL Equitable and, under the modern trend, promissory estoppel may also be used to prove an oral contract for the sale of land. (a) Equitable estoppel is based on an act or a representation. (b) Promissory estoppel is based on a promise.

Exceptions to the Statute of Frauds

Although relevant, evidence may be excluded if any of six considerations exists. If the probative value is SUBSTANTIALLY outweighed (40/60 to be excluded) by: (1) the danger of unfair prejudice, meaning the evidence invites the jury to make a decision on an improper ground; (2) confusion of the issues; (3) misleading the jury; (4) considerations of undue delay; (5) waste of time; or (6) needless presentation of cumulative evidence (oral and documentary, as may be presented to the court at the hearing hereon). The Rule 403 balancing test FAVORS admission. Most Rule 403 objections are (properly) overruled.

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Rule 403)

A defendant who has Fourth Amendment standing may: invoke the exclusionary rule to prevent g'vt introduction of evidence obtained or derived from an unreasonable search or seizure.

Exclusionary Rule

There are three situations in which the failure of the condition may be excused such that the performance obligation of the party who stood to benefit from the condition is not discharged. Situation #1: *Waiver* Situation #2: *Bad faith conduct* Situation #3: *Gross forfeiture*

Excusing Failed Express Conditions

Courts will excuse a performance obligation so as to avoid a grossly disproportionate loss to a party for a relatively minor infraction.

Excusing Failed Express Conditions Gross forfeiture

If a party has been discharged from performing an express condition, he may waive this discharge and perform anyway. Some courts treat this as a mid-term modification. If this is a common law transaction, it will require additional consideration to be enforceable against the party who decided to perform. Conversely, a party may voluntarily excuse an express condition or "waive" his right to insist the condition be satisfied. This waiver doesn't need mutual consent, consideration, or to be express. If the waiver is retracted before the other party has acted on it to their detriment, the original position of the parties is restored and the condition must be satisfied.

Excusing Failed Express Conditions Waiver

1. Rescission 2. Accord and Satisfaction

Excusing Performance by Agreement of the Parties

Contracting parties must make certain assumptions about past and future events to contract with one another. Under certain circumstances, where those assumptions turn out to be faulty due to mistake, impossibility, impracticability, or frustration of purpose, their contract may be excused.

Excusing Performance due to Faulty Assumptions

The President, with the advice and consent of the Senate, can nominate and appoint: (a) Ambassadors, public ministers, and consuls (b) Judges of the Supreme Court, (c) All other Officers of the United States Although Congress can appoint officials to its legislative committees, it cannot appoint members to any agency or commission with administrative powers.

Executive Power Chief Executive Appointment Power

Congress can delegate the appointment of "inferior" officers to: 1) the President; 2) the judiciary; or 3) the head of an executive department. An "inferior officer" is anyone who has a superior.

Executive Power Chief Executive Appointment Power Congress can delegate the appointment of "inferior" officers to:

The President can enforce laws, but he cannot make them.

Executive Power Chief Executive Enforcement of Laws

The President has an absolute privilege to refuse to disclose information relating to military, diplomatic, or sensitive national security secrets. Other confidential communications between the president and his advisors are presumptively privileged. The presumption is overcome when confidential communications are subpoenaed as evidence in a criminal trial.

Executive Power Chief Executive Executive Privilege Absolute privilege

Other confidential communications between the President and his advisors are presumptively privileged. The purpose of this is to allow the President to seek candid advice. The presumption is overcome when confidential communications are subpoenaed as evidence in a criminal trial. Balancing the need for the information against the sensitivity of the information.

Executive Power Chief Executive Executive Privilege Presumptively privileged:

No/no Can Congress require the President to get approval (you can only fire this person with approval)? - no Can Congress itself remove someone? - no EXCEPTION - Special prosecutor

Executive Power Chief Executive Removal Power Congressional approval/removal

The President may remove any executive appointee without cause (e.g., an ambassador or cabinet member). However, the President must have cause to remove executive officers having fixed terms and officers performing judicial or quasi-judicial functions.

Executive Power Chief Executive Removal Power Executive officials:

The President cannot remove judges even for cause. The only way a federal judge may be removed is by impeachment.

Executive Power Chief Executive Removal Power Federal judges:

Special prosecutor cannot be removed by a president when the special prosecutor has been appointed to investigate him.

Executive Power Chief Executive Removal Power Special prosecutor

Veto Process: Once Congress has passed legislation by a majority vote in each house, the President has 10 days in which to act upon it. Unless he vetoes it within the 10-day period, the proposed legislation will become law. If the President vetoes it, Congress must override the veto. If the President takes no action within 10 days, it becomes a law. EXAM TIP: Bicameralism and presentment are the only ways in which a bill can become a law. A legislative veto is unconstitutional (i.e. the law is "x" but if congress wants to change it they can change it without the president's signature).

Executive Power Chief Executive Veto Power

is unconstitutional b/c it allows the President to effectively amend the law. The law can only be amended by a vote of both houses. A line item veto gives the President the power to cancel particular provisions of new federal legislation and it has been held unconstitutional. The President has to either accept a bill or veto it as a whole.

Executive Power Chief Executive Veto Power A line-item veto:

The President is the Commander in Chief of the military. Only Congress has the power to declare war. If Congress has not done so, the President's powers are limited to using military force in response to a surprise attack upon the United States; and If the President and Congress disagree, the President prevails only with respect to battlefield tactical decisions. The President has the power to seize private property during wartime unless Congress denies him that power.

Executive Power Commander in Chief

(1) The President has the power to enter into executive agreements with foreign nations. (2) Executive agreements are the sole responsibility of the President, and need not be ratified by the Senate. (3) Federal statutes: Executive agreements do not prevail over federal statutes. (4) State Law: Such agreements are valid and prevail over inconsistent state law.

Executive Power International Affairs Executive Agreements

The president shall give Congress information on the State of the Union from time to time and recommend to their consideration such measures as he shall judge necessary and expedient. This obligation has evolved into the annual "State of the Union" address given by the President.

Executive Power Obligation to Report

Executive power is vested in a President of the United States. This provision confers broad authority in the present to execute the laws of the United States. 1. Chief Executive 2. Commander in Chief 3. International Affairs

Executive Power (OL II. B.)

(1) A court-created privilege: In U.S. v. Nixon (1974), the Supreme Court recognized such a constitutional privilege for the President. (2) Courts decide whether the privilege applies, although the President has an absolute privilege to refuse to disclose matters of national security

Executive Privilege

Police may search without a warrant when the situation indicates waiting to obtain a warrant will result in imminent: *(a) destruction of evidence* Exigency justifies a warrantless search and seizure of evidence in or on a suspect's body provided that there is probable cause to believe that the nature of the evidence is likely to disappear before a warrant can be obtained. *(b) escape of the suspect* When police are in hot pursuit of a fleeing suspect, it creates an exigency that justifies a warrantless home entry. *(c) risk to police or others in the area* Exigency justifies a warrantless crime scene search for victims or felons. This exception does not authorize a general search at the crime scene unrelated to this purpose. Make sure the procedure by which evidence is search for does not shock the conscience.

Exigent Circumstances

Majority Rule: Real property inherited under a will is taken subject to all outstanding liens and mortgages. The estate does not pay them off.

Exoneration

This is the default award courts will grant aggrieved parties. An award of expectation damages means that *the aggrieved party will be entitled to the amount that will restore him to the position he would have been in had the contract been fully performed.* EXAMPLE: A patient with a hand injury contracts with his doctor for hand surgery. The doctor promises him a "100% perfect" hand, but instead the surgery makes the hand worse. The expectation interest of the patient is measured by the *difference between the value of the promised "100% perfect" hand and the value of the hand worsened by surgery.*

Expectation Damages

The aggrieved party may not be able to recover the full amount of expectation damages. A recurring example of a case where uncertainty in awarding expectation damages exists is a new business w/ no profit history

Expectation damages cannot be calculated with reasonable certainty

Express assumption of the risk arises where: Plaintiff through written or oral words relieves the defendant of their responsibility to be non-negligent towards the plaintiff. Typically a waiver that accompanies athletic activities and recreational sports. Void against public policy when dealing with a necessity - if something is a necessity (like healthcare), you cannot waive your ability to sue. Waivers are invalid against culpable conduct; only protect negligent plaintiffs.

Express Assumption of Risk

Express malice is established by proving D intended to kill another human being. Intent to kill is established by proving: 1) Defendant had the purpose to kill, 2) Defendant knew her conduct would cause death (resulting death was inevitable), or, 3) Defendant acted with the intent to inflict grevious bodily harm on the victim, although did not intend to kill. If a D acts with purpose/knowledge, intent to kill is proven. Where D engaged in conduct he expected would cause death, malice will normally be express.

Express Malice

The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted.

Express Warranty Damages

Express contractual obligations are found where *the parties make oral and written expressions of their commitments*

Express contractual obligations

(1) Express conditions: those that the parties expressly include in provisions of the contract (2) Implied conditions are: a fiction employed by courts to deal with the potential effect of breaches of contract

Express versus Implied Conditions

*Voluntariness Approach* • Due Process Clause of 5th and 14th Amendments • Triggered by government conduct that overbears the free will of the suspect • Totality of the circumstances *Right to Counsel Approach* • 6th Amendment Right to Counsel • Triggered by direct or surreptitious police questioning of a defendant who without the lawyer present or a waiver • Was counsel present? If not, did defendant waive? *Miranda Rule* • 5th Amendment Privilege Against Self-Incrimination • Triggered by Custody + Interrogation • Did suspect make a knowing and voluntary waiver? If not, statements violate Miranda. *Fruits of Illegal Conduct* • Fruit of the Poisonous Tree Doctrine • Triggered by a but for link between a constitutional violation and police obtaining the statement • Is the statement a product of the prior violation? If so, can the government prove it is sufficiently attenuated from the poison tree?

FOUR BASES TO EXCLUDE STATEMENTS AND CONFESSIONS

Where a condition has failed and cannot be excused, there are other methods of enforcement available to mitigate the consequences for the breaching party. The breaching party may be able to argue that the contract is divisible and only a part of it has been materially breached. A contract is divisible where it is easily apportioned into agreed equivalents. EXAM TIP: If the whole is merely the sum of its parts, it is divisible. If the whole is greater than the sum of the parts, it is not divisible.

Failed Condition That Cannot Be Excused

Under the perfect tender rule, the terms of a contract for the sale of goods are enforced exactly. Every contract terms is thus treated as an express condition, and a breach by seller will relieve the payment obligation of the buyer. The seller is in breach: if the goods fail in any respect to conform to the contract. If the seller fails to make perfect tender, the buyer has three courses of action available: 1) Accept the goods 2) Reject the goods 3) Accept part and reject part

Failure of Condition under the UCC

The critical rule: When accepting part and rejecting part, the buyer can only do so in terms of commercial units of that good (the buyer, for example, can't accept half of a loaf of bread and reject the other half).

Failure of Condition under the UCC Accept Part and Reject Part

The buyer may accept the goods, despite the improper tender. Acceptance occurs when the buyer has had a reasonable opportunity to inspect the goods and signifies acceptance either through: i) stating to the seller that the goods conform to the contract; ii) taking the goods despite their non-conformance; iii) failing to make an effective rejection; OR iv) taking any action inconsistent with the seller's ownership of the goods (like putting goods on the showroom floor). What are the legal consequences of the buyer's acceptance? i) the buyer must pay the contract price for those goods ii) the buyer may also seek damages for any non-conformity so long as the seller has been seasonably notified. The buyer can revoke the acceptance if there is a non-conformity that substantially impairs the value of the goods and if (1) the reason for the acceptance was that the buyer was unaware of the non-conformity or (2) the seller assured the buyer that a known non-conformity would be cured but the seller failed to do so.

Failure of Condition under the UCC Accept the Goods

For a buyer to reject the goods, the buyer must exercise the right of rejection within a reasonable time after delivery, and notify seller. Once a buyer rejects the goods, the buyer may bring an action for damages against the seller on account of the imperfect tender, unless cure applies. If the buyer does not effectuate rejection in the manner specified above, then he has made a failed rejection, which will be deemed to be an acceptance of the goods by the buyer.

Failure of Condition under the UCC Reject the Goods

The failure of an express condition will discharge the party's obligation to perform Identifying Express Conditions Look for clear language of the parties. EXAMPLES: "The party's duty to perform is expressly conditioned on the promised performance." "There is no obligation to proceed unless and until the following steps are taken." "Payment is due upon completion"

Failure of an Express Condition under Common Law

False imprisonment arises where the defendant intentionally causes plaintiff to be confined or restrained to a bounded area against the plaintiff's will, and the plaintiff knows of the confinement or is injured thereby. Elements: (1) Intent (2) Confinement (3) Against the plaintiff's will (4) Plaintiff knows of the confinement or is injured thereby

False Imprisonment

False imprisonment is the intentional, unlawful confinement of one person by another. If the defendant is privileged to confine the victim, such as a police officer or a private citizen making a valid citizen's arrest, no false imprisonment is committed b/c it is lawful. Victim must be fully confined - all exits must be blocked.

False Imprisonment

The requirement of consideration is not satisfied by a false recital Example "For value received, I promise you $10,000 upon your 21st birthday." If no value was received in exchange for the promise, the recital would not satisfy the consideration requirement and the promise would be unenforceable. A minority of courts recognize an exception to this rule where: written option contracts contain a false recital of consideration.

False Recital of Consideration

Some federal law exists simply as a body of precedent repeatedly applied and molded by the courts. Court-made law. This body of law is known as "federal common law" and is generally confined to the following fields of law: (1) maritime law (2) foreign relations (3) commercial rights and liabilities of the federal government (4) property rights and liabilities of the federal government When a case implicates one of these areas, the federal courts will apply (and, if need be, create) any existing federal common law and ignore any state law that might otherwise apply.

Federal Common Law Cases

The Supreme Court will not give advisory opinions to either the president or Congress concerning the constitutionality of proposed action or legislation. State courts may be allowed to render advisory opinions. The prohibition against advisory opinions does not preclude federal courts from granting declaratory judgments. A declaratory judgment is a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief. However, the plaintiff must still meet "RAMPS" requirement of ripeness, abstention/adequate state grounds, mootness, political questions, and standing.

Federal Court System Case or Controversy Advisory Opinions / Declaratory Judgments

a. Mootness b. Political Questions c. Abstention d. Adequate and Independent State Grounds

Federal Court System No Advisory Opinions

The federal court may abstain or refuse to hear a particular case when there are undecided issues of state law presented. The abstention doctrine permits the state court to resolve issues of state law, thereby making a decision of the constitutional issue unnecessary. (a) The federal court may abstain if the meaning of a state law or regulation is unclear. In this situation, the state court might interpret the statute so as to avoid the constitutional issue. (b) Where a state court proceeding is going on, the federal court will abstain from hearing the same matter.

Federal Court System No Advisory Opinions Abstention

Where a state court holds that a state law violates both the state and federal constitutions ----- ----- the doctrine of adequate state grounds will apply. If a state court judgment can be supported on an adequate and independent state ground ------ -------- the Supreme Court will not take jurisdiction b/c it would be an advisory opinion. Where a state court's decision is based upon federal interpretation -- -- adequate and independent state grounds will not apply. The Supreme Court may review in this situation. Where it is unclear whether the state court made its decision based upon state or federal interpretations of statutes ----- the Supreme Court may: (a) take the case, (b) dismiss the case, or, (c) remand the case for clarification from the state court.

Federal Court System No Advisory Opinions Adequate and Independent State Grounds

If a controversy or matter has been resolved, then the case will be dismissed as moot. An actual case or controversy must exist at all stages of the litigation EXCEPTION: The case will not be dismissed for mootness if the injury is "capable of repetition, yet evading review," meaning that it is a practical impossibility for there to be adjudication or appellate review before the claims of the plaintiff, or other individuals who are members of the class, become moot. EXAM TIP: If the answer is "ripeness" or "mootness," then the question will most likely deal with declaratory judgment.

Federal Court System No Advisory Opinions Mootness

A claim that a state has redrawn its electoral districts in a racially discriminatory manner is not a political question. However, a claim that a state has redrawn electoral districts to benefit one political party is a political question and, therefore, is nonjusticiable. The Supreme Court has ruled that there are manageable judicial standards for deciding claims of race discrimination, but that there are no such standards for deciding when a political party has been unfairly advantaged when electoral districts are redrawn.

Federal Court System No Advisory Opinions Political Questions Drawing Electoral Districts

Article III, section 2, limits the jurisdiction of the federal courts to: Law-Based Federal Jurisdiction Party-Based Federal Jurisdiction

Federal Court System Scope of Federal Judicial Power

Article III requires a person litigating a constitutional question to show: (a) Injury in Fact (b) Causation (c) Redressability

Federal Court System Standing

The injury was caused by the challenged action.

Federal Court System Standing Causation

The plaintiff must show a direct and personal injury, actual or imminent, caused by the action that he is challenging.

Federal Court System Standing Injury in Fact

The plaintiff must show that he will benefit from the remedy sought in the litigation.

Federal Court System Standing Redressability

The 11th Amendment prohibits private individuals from suing states for money damages in any court because of state sovereign immunity.

Federal Court System The 11th Amendment:

To be the "right time", the resulting death must occur as the injuries inflicted during the attempt of, commission of, or immediate flight from the felony. It is not necessary that the death occur during the felony, only that the harm that results in death occurs during the felony. For purposes of felony-murder, the felony starts when the defendant could be convicted of attempting the felony - there is no requirement that the felon complete the felony. The felony is deemed to have terminated when the felon has reached a place of immediate safety.

Felony Murder - murder must occur at the "right time"

Felony-murder is: a) normally an unintentional killing (but can be intentional), b) proximately caused, c) during the attempt, commission, or immediate flight, d) from a serious or inherently dangerous felony or a felony that's listed in the definition of felony murder Defendant must have an intent to commit the underlying felony. For felony murder, malice is automatically established by causing a death during the commission of the 'right type' of felony.

Felony-murder

Sometimes, federal question actions will involve state and federal law. Federal subject matter jurisdiction is still permissible as long as the federal question: (1) is actually in dispute, (2) demands the expertise of federal judges, and ought to be resolved as uniformly as possible; and (3) is not so commonly present in state law actions that federal courts would end up taking a large portion of state courts' traditional jurisdiction.

Federal Question Inside State Law Claims

Federal courts have original jurisdiction over all civil actions arising under the Constitution, law, and treaties of the United States. A case arises under federal law if the federal question appears on a fair reading of a well-pleaded complaint. A violation of a federal statute does not create a federal cause of action unless the statute also provides a remedy for the violation. A state question that involves a question of federal law may be sufficient to create federal question jurisdiction provided that the federal law's impact on the state question is substantial. Federal courts have original jurisdiction over admiralty or maritime cases. Federal courts have subject-matter jurisdiction to review the state court conviction of a prisoner through a writ of habeas corpus, challenging the confinement of the prisoner on federal constitutional grounds.

Federal Question Jurisdiction

Federal SMJ concerns whether a plaintiff may file a claim in the federal court system, or must instead seek relief in a different court system (such as in state court). SMJ has nothing to do with the geographic location of the lawsuit. Federal district courts have the power to hear the following cases: a. Federal question jurisdiction b. Diversity Jurisdiction c. Supplemental jurisdiction

Federal Subject Matter Jurisdiction

Our focus is the United States Constitution. Almost all these rights apply to the states through the 14th Amendment. This *federal standard is a constitutional baseline.* The state may add more protection, but may not go below this baseline. THEREFORE, a state statute that grants police authority to engage in conduct that violates the federal constitutional standard is invalid (like a statute authorizing a no-knock warrant execution for an entire category of crimes).

Federal and State System

(a) Very broad: Extends to licensed social workers, psychologists, mental health specialists, psychiatrists, marriage counselors. NOT: educational and vocational counselors (b) The privilege applies to protect confidential communications between: a licensed psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition (mental or emotional)

Federal psychotherapist-patient privilege generally

1) statements made regarding commitment proceedings; 2) statements dealing with court-ordered examinations; 3) when the medical condition is part of the claim such as: personal injuries or malpractice suits against the doctor. 4) future crime or fraud (same as attorney-client).

Federal psychotherapist-patient privilege that can be asserted through common law EXCEPTIONS

Anyone who owns a fee estate can do whatever they want with the property. Waste does not apply.

Fee Estate and Waste

A fee simple absolute is the best estate. The largest possible estate in land, denoting the aggregate of all possible rights that a person may have in that parcel of land. Can sell it, cut down all the trees, do whatever you want to it. It may last forever.

Fee Simple Absolute

Can be created when the conveyance uses conditional language as to the occurrence of a condition that will terminate the estate. Conditional language will potentially lead to creation of a fee simple subject to a condition subsequent, but the power of termination must be expressly reserved to the grantor. EXAMPLES: "A to B, provided that in the event the premises are not used for educational purposes, then A has the power to terminate B's estate." "A to B, but if B stops using the premises for residential purposes, then A may reenter and retake the estate." "A to B for life, on condition that B uses the land for recreation, but if he fails to do so, A may retake the estate."

Fee Simple Subject to a Condition Subsequent

Early Common Law: A fee tail was a freehold estate that descended to the grantee's lineal descendants (children) only. This was classically used to keep property on the male side of the line. EXAMPLE: "A to B and the heirs of his body." Modern law: fee tails are disfavored, and typically treated as fee simple absolutes.

Fee Tail

A crime punishable by death or by imprisonment for more than one year. At common law, burglary, arson, robbery, rape, larceny, murder, manslaughter, and mayhem were considered felonies.

Felony Crime

To have the "right connection to the felony", the resulting death must be a foreseeable outgrowth of the felony*. Most deaths are considered foreseeable for purposes of felony-murder. Only deaths that are totally unrelated to the felony and occur as a mere coincidence to the felony are excluded from felony murder liability.

Felony Murder - murder must be connected to felony

This privilege applies only to evidence that is "testimonial", taken on the stand Presentation of real and demonstrative forms of evidence are not protected The accused in a criminal trial has a Fifth Amendment privilege to refuse to take the stand. Testimony given at a preliminary hearing DOES NOT waive the privilege of the accused not to take the stand at trial.

Fifth Amendment Privilege Against Self-Incrimination Constitutional privilege

Blood, hair, handwriting samples, fingerprints, lineups, photo IDs; scars, tattoos; put on a hat, item of clothing; bloody glove, "read this."

Fifth Amendment Privilege Against Self-Incrimination Examples where Fifth Amendment privilege DOES NOT apply:

the witness waives the privilege 1) When a witness waives, cross-examination is limited to the subject matter about which the privilege was waived (not a blanket waiver).

Fifth Amendment Privilege Against Self-Incrimination The Fifth Amendment no longer applies when

A witness with transactional immunity cannot be prosecuted for the underlying offense

Fifth Amendment Privilege Against Self-Incrimination Transactional Immunity--Broad:

Statements by the witness may not be used against the them, but the prosecution does not agree that it will never prosecute. The person may be prosecuted upon independent and untainted evidence Remember, an immunized witness may still be prosecuted for perjury.

Fifth Amendment Privilege Against Self-Incrimination Use Immunity—Narrow:

Commercial speech is protected by the First Amendment if it is (1) not false or deceptive and (2) does not relate to unlawful activity. If commercial speech satisfies these requirements, government regulation of the speech must satisfy the three-part test: a) serve a substantial governmental interest; b) directly advance the substantial governmental interest; and c) not be more extensive than is necessary to serve that interest.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Certain categories of speech receive lower levels of protection (quasi-protected speech): Commercial speech

A state cannot place a ban on the advertisement of drug prices.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Certain categories of speech receive lower levels of protection (quasi-protected speech): Commercial speech - drug prices

A state cannot prohibit attorneys from advertising legal services. States cannot ban all advertising for legal products. A state can: a) may discipline lawyers for "in-person" solicitation of clients for personal gain because of the potential for overreaching. b) prohibit commercial billboards.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Certain categories of speech receive lower levels of protection (quasi-protected speech): Commercial speech - legal services

Indecent speech is fully protected but can be regulated on the basis of secondary effects. Such regulations must: (a) serve a substantial government interest, and (b) leave open reasonable alternative channels of communication.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Certain categories of speech receive lower levels of protection (quasi-protected speech): Sexual or indecent speech.

Constitutional restrictions apply to defamatory speech where the plaintiff is either a public official or public figure, or where the defamatory statement involves a matter of public concern.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Defamatory speech.

must prove actual malice. Note that this standard is higher than in cases when a private plaintiff sues for defamation over matters of public interest; in the latter cases, the plaintiff need only prove negligence. In addition, the Court said that a newspaper or broadcaster cannot be held liable for: (a) publishing truthful information obtained from the public record, (b) publishing any newsworthy information, or (c) publishing any true information.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Defamatory speech. If a private plaintiff suing a media defendant for false-light invasion of privacy, concerning a matter of public interest:

the plaintiff need not prove actual malice but must prove negligence about the truth or falsity of the statement.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Defamatory speech. When the plaintiff is a private person and the subject of the statement is a matter of public concern:

the plaintiff need not prove actual malice or negligence, and may recover according to common law defamation principles.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Defamatory speech. When the plaintiff is a private person and the subject of the statement is a matter of purely private concern:

the plaintiff must prove the state law requirements of defamation, plus "actual malice," defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement. This rule holds whether the allegedly defamatory statement is a matter of public or private concern.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Defamatory speech. When the plaintiff is a public official or public figure

Words likely to incite an ordinary citizen to acts of immediate physical retaliation may be punished. i) To fall within this category, the speech must be more than annoying or offensive; it has to be a direct personal insult. ii) "Fighting words" statutes are subject to facial invalidity if the conduct proscribed is vague (e.g., a law prohibiting "opprobrious words") or overbroad. iii) "Fighting words" statutes designed to punish certain viewpoints are unconstitutional.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Fighting words:

Speech which elicits an immediate violent response against the speaker by an audience may be grounds for prosecution. The police, however, must make reasonable efforts to protect the speaker, to guard against a "heckler's veto" of unpopular speech.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Hostile audience speech:

Courts have traditionally been reluctant to allow liability for emotional distress, and apply special rules for claims for pure emotional distress. Distinguish pain and suffering damages from emotional distress recovery. Direct Actions v. Bystander Actions:

If the plaintiff's injury is not personal injury or property damage, duty issues arise. Emotional Distress

For speech to be considered obscene, a three-part test must be satisfied: 1) The average person, applying local contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; 2) The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and 3) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Obscene speech

Test: i) such advocacy is directed to inciting or producing imminent lawless action; and ii) is likely to incite or produce such action.

First Amendment Content-Based Discrimination Unprotected and low-value Speech Speech that advocates violence or unlawful action.

Strict Scrutiny The government will face strict scrutiny if it engages in content-based discrimination. (a) This is the form of discrimination censorship would take. (b) An even more obvious form of this is viewpoint discrimination. Five exceptions: (a) If the government passes strict scrutiny (this occurs for things like child porn) (b) Unprotected or low-value speech. (c) Government as speaker. (d) Content neutral conduct regulation. (e) Content-neutral time, place and manner regulation.

First Amendment General Content-Based Discrimination - level of scrutiny

When a state has the power to regulate an area dealing with free speech, it must do so in a way that is narrow and specific, and not overly broad so as to have a "chilling effect" upon protected speech. Overbreadth is an exception to third party standing.

First Amendment Overbreadth

The press has no greater freedom to speak than any ordinary member of the general public. A newsperson has no First Amendment right to refuse to testify before a grand jury.

First Amendment Press

The Court has held that cable television receives First Amendment protection somewhere between that of broadcast TV and newspapers and citizens. The government can ban offensive sexual content and speech on broadcast television. Where cable TV operators are subjected to content-neutral regulations: are subjected to content-neutral regulations, intermediate scrutiny is applied. On the other hand, where content-specific regulation is imposed, the Court has yet to select a standard of review; however, the Court allows cable TV operators the right to ban "indecent" programming on channels that are leased outright to unaffiliated third parties (but not to public access channels).

First Amendment Press Cable Television

In general, radio and television broadcasting radio and television broadcasting can be more closely regulated than the print media or a private individual, due to the fact they had to receive a license from the government and are exercising a privilege the government gives them. The government can ban offensive sexual content and speech on broadcast television.

First Amendment Press Radio and television broadcasting radio and television broadcasting

. (1) A licensing statute that is valid on its face must be obeyed and a permit denial cannot be ignored, even if the statute is applied unconstitutionally. (2) Where a statute is facially void (i.e., gives the licensing officials unrestricted discretion): a speaker need not even apply for a permit. In this case, one may exercise his First Amendment rights on the public property without a permit. .

First Amendment Prior Restraint A method the government frequently uses for regulating the time, place, and manner of speech is to require a license or permit for such activities as a parade, demonstration, or rally.

The Court has held that statutes requiring films to be submitted to a Board of Censors before showing them are constitutional if the following requirements are met: (1) the standards for the denial of a license are narrowly drawn and reasonable; (2) when a license is denied, the censor promptly seeks an injunction; (3) the burden of proving that the material is "obscene" is on the censor; and (4) a prompt judicial determination is provided.

First Amendment Prior Restraint Motion Pictures Pre-Publication Censor

(1) careful voir dire of the jury; (2) a change of venue; or (3) postponement of the trial.

First Amendment Prior Restraint Pretrial gag orders are usually unconstitutional if there are alternative means to prevent pollution of the jury pool:

(1) the nature and extent of the pretrial publicity; (2) the availability of other measures to mitigate the effects of pretrial publicity; and (3) the likely effectiveness of the restraining order.

First Amendment Prior Restraint The Supreme Court required trial judges to consider three factors in determining if a restraining order against pretrial publicity is appropriate:

States can require that large gatherings get a permit to use public property as long as there are defined grounds on how to receive such a permit and grounds are content neutral. A state cannot require parades or marches to pay for police protection based on actual expense. This would not be content neutral. A state can restrict the volume and hours of amplifiers.

First Amendment Time, Place, Manner Regulation of Speech Large Public Gatherings

A state cannot enact a complete ban on door-to-door solicitation, because a homeowner can protect his privacy by posting a "No Solicitors" sign. An ordinance requiring door-to-door solicitors, or canvassers, to identify themselves to local authorities was upheld in the interests of crime prevention. The Supreme Court held that a city may not require religious or political canvassers to register and receive a permit where the canvassing consists of religious conversion or political speech. A peaceful protest on a sidewalk in front of a private home may be restricted as long as other areas in the neighborhood are available to do so, an alternative channel. In some cases, the Court has upheld buffer zones.

First Amendment Time, Place, Manner Regulation of Speech Canvassing, Solicitation, and Demonstrations

The Supreme Court has upheld the constitutionality of a federal law that permits the Post Office, upon a householder's request, to order a mailer to stop all future mailings to that addressee.

First Amendment Time, Place, Manner Regulation of Speech Mailings

UCC covers sales of *goods* Goods are broadly defined as *any movable item* (tangible property) - personal property. *Examples of goods* in the Code include: growing crops (your cotton is still growing, hasn't been picked yet, but will be), uncut timber, unborn livestock. *Goods do not include*: intangibles (i.e. the right to use a website), money, assignment of a legal claim, services (construction, employment, dry cleaning), or real property.

Goods

The government cannot suppress or restrain speech in advance of its publication or utterance. Exceptional cases in which prior restraints are allowed: (1) Classified military information. (2) A government agency can require prepublication review of writings related to employment of past or present employees where such a review is necessary to protect national security. Injunctions must be obeyed or appealed; they cannot be ignored even if erroneous. There is a strong presumption against the constitutional validity of any system of prior restraint of expression. (1) The Supreme Court refused to permit the government to enjoin the publication of the Pentagon Papers. (2) Confiscation by the Post Office of mailed materials determined by the Postmaster General to be "obscene" was held invalid.

First Amendment Time, Place, Manner Regulation of Speech Prior Restraint

Prisoners' speech rights may be restricted if the regulation is rationally related to a legitimate penological objective

First Amendment Time, Place, Manner Regulation of Speech Prisoners

An individual cannot be denied public employment based upon membership in a political organization unless the position is a high-level policymaking position. An individual may be deprived of public employment for political association if: (1) They are a member of a subversive organization, (2) They are aware of the illegal aims of the organization, (3) They have specific intent to further those aims.

First Amendment Time, Place, Manner Regulation of Speech Public Employment

The government may place reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks—places historically associated with expressive conduct (e.g., picketing, leafleting, and broadcasting). Cannot regulate content! To be constitutional, the regulation must: a) be content neutral, as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others); b) be narrowly tailored to serve an important government interest; and c) leave open alternative channels of communication.

First Amendment Time, Place, Manner Regulation of Speech Public Place

Public employees may be disciplined or fired for speech if: (1) the speech is not on a matter of public concern; OR (2) the speech is potentially disruptive of the workplace, even if that speech Is on a matter of public concern.

First Amendment Time, Place, Manner Regulation of Speech Public employees may be disciplined or fired for speech if:

Speech-related activities at non-public forums such as military bases, jails, government workplaces, and mailboxes can be regulated by viewpoint-neutral regulations. The government regulation must be reasonably related to a legitimate government interest. Under this test, A state may prohibit demonstrations on jailhouse grounds; Military bases may be closed to political speeches and distribution of leaflets; The government can regulate speech in government workplaces; A city may sell space for commercial advertising on city buses but refuse to sell such space for political advertising; A public television station can exclude a candidate from its debate; A public school MAY NOT deny use of its facilities to religious groups if other public and private groups are allowed similar access.

First Amendment Time, Place, Manner Regulation of Speech Speech-related activities at non-public forums

(1) the government can require public employees to take an oath to support the Constitution and to oppose the overthrow of the government by illegal means; (2) public school teachers do not have to report a list of all organizations to which they belong; (3) the government cannot require public employees to swear not to: aid, advise or influence the Communist Party; (4) the government cannot require employees to swear to inspire reverence for the flag; (5) school children do not have to recite the Pledge of Allegiance (they are not public employees); and (6) lawyers can be required to swear to support and defend the Constitution, even though they are not public employees.

First Amendment Time, Place, Manner Regulation of Speech With respect to oath requirements for public employment (6)

(1) Marriage contracts (2) Contracts not to be performed within one year of their making (3) Contracts for the sale of land (4) Contracts of an Executor or administrator to answer for a duty of a decedent (5) Contracts of Guarantee or suretyship (6) Contracts for the Sale of goods at a price of $500 or more (section 2-201 of the UCC)

First Question: Is the Contract within the Statute of Frauds?

First-degree murder includes intent-to-kill murder committed with premeditation and deliberation, felony murder, and, in some jurisdictions, murder accomplished by lying in wait, poison, terrorism, or torture. At common law, and in almost all degree jurisdictions: proof the defendant killed w/ premeditation and deliberation elevates murder to first degree. Some jurisdictions require little or nothing more than an intent to kill in order to find premeditation and deliberation, but most jurisdictions require more. Most jurisdictions require a reasonable period of time for premeditation and some evidence of reflection in order to distinguish first degree murders from "spur-of-the-moment killings"

First-degree murder

Premeditate: *quantity of thought* about the decision to kill. At common law, it could be almost instantaneous. Most jurisdictions now require a brief moment of reflection on the decision to kill.

First-degree murder Premeditation

Warranty against significant latent defects in new or remodeled homes by builders and developers. The buyer must discover these within a reasonable time after construction or remodeling Does not apply to commercial structures.

Fitness and Suitability Implied Warranty of Quality

Commercial builders and home developers have a duty to disclose material latent defects known to the seller but not readily observable and not known to the buyer. Some states extend the duty to all sellers of homes, new or used. If the seller fails to follow through or has an ongoing duty to make sure the premises are habitable or fit, it may lead to tort liability.

Fitness and Suitability Residential Homes Duty of seller to disclose

1. A fixture is a chattel attached to the land. 2. A chattel becomes a fixture if it is owned by the landowner and is so necessary or convenient to the use of the land that it is regarded as part of the land. 3. The intent to add a chattel to the land is a question of fact, judged by the reasonable person standard. 4. A deed to the land transfers all fixtures on the property, unless buyer and seller agree otherwise. 5. A mortgage covers the land and all its chattels, no matter when the chattels are annexed. Even if you plant roses after negotiating mortgage, you can't take them with you

Fixtures What is it When does something become a chattel Deeds Mortgages

(1) As many mortgage as there are people willing to lend money. Principles apply here - "first in time, first in right", recording acts EXAMPLE: Piece of property has five mortgages on it: 1, 2, 3, 4, 5. Mortgage 1 falls into default and the holder institutes foreclosure proceedings. The holders of mortgages 2, 3, 4, and 5 must be notified of the proceedings so they can participate. The property will be seized and sold at the foreclosure sale. Whoever buys the property at the sale buys it free and clear of any mortgages because all of the mortgages would be discharged through the foreclosure sale. Proceeds pay off the cost of the sale, and if there is money left, we then pay off mortgage 1 in its entirety, then 2, 3, etc. If we run out of mortgages and there is money left over, that money goes back to the original debtor. If we run out of money first paying off mortgages 1, 2, and 3, mortgages 4 and 5 can obtain a deficiency judgment.

Foreclosure Remedies on Default There is no limit on the number of mortgages that one can have.

(1) Judicial foreclosure: most common, judicial proceedings, pleadings, service of process (2) Private sale (power of sale) Private party conducts a public sale, still have to notify all affected parties-only available if mortgage document specifically provides for it. Most often in connection with deed of trust. Third party holding deed has to make sale to ensure creditor receives full value of the property.

Foreclosure - suing in rem Remedies on Default Types of foreclosure:

1. Forgery is defined as: fraudulent making a false writing, with apparent legal significance and intent to wrongfully use it a. An alteration must be material (change the legal meaning or effect of the document) to qualify the action as an element of forgery, such as signing a false signature to a will.

Forgery

Reputation - the witness must establish he is aware of the reputation of the party in the relevant community. Opinion - the witness (proponent) must establish that he has sufficient knowledge to form an opinion about the particular trait.

Foundation for Reputation/Opinion Evidence

Where the speaker is the government, not a private actor, the government may restrict whatever it wants. EXAMPLE: The government prohibited doctors in government clinics from discussing abortion with its patients. This was held constitutional.

Government as Speaker

The fraud here consists of: *the defendant's silence when there was a duty to disclose* Three elements: 1: *The non-disclosure was material to the contract* 2: *Reasonable reliance on the non-disclosure* 3: *A duty of disclosure and a failure to fulfill it* Although there is generally no duty of disclosure to trading partners, *if a party is aware of material facts that are unlikely to be discovered by the other party in the exercise of ordinary care and diligence, then there will be a duty to disclose that information in these circumstances*: (a) TRUST - where parties enjoy a *relationship of trust and confidence* (family members, fiduciary relationships, attorney-client) (b) CORRECTION - where a party has made an assertion that was true at the time, but has been *rendered untrue by intervening events* (c) GOOD FAITH - if the *obligation of good faith* would require that the party disclose the information; based on the circumstances

Fraudulent Nondisclosure

OK STATE ACTION Oregon criminalized the possession of peyote, and no exemption was made for American Indians who use peyote for their religious rituals. The Supreme Court upheld the law, and held that a neutral law of general applicability does not violate the Free Exercise Clause, even if it prohibits or punishes conduct engaged in as a religious observance or practice. A state law outlawing polygamy was upheld. The Court struck down a free exercise challenge by a Jewish Air Force doctor who violated uniform dress requirements by wearing a yarmulke while on duty. The Social Security tax applied to an Amish employer was held constitutional, even though his religious beliefs prohibited him from making payments and from receiving benefits NOT OK STATE ACTION The state cannot deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath. The state cannot require that Amish children to attend high school.

Free Exercise Clause EXAMPLES

The First Amendment forbids the Congress from making a law that abridges freedom of speech, freedom of the press, the right to peaceably assemble, or the right to petition the government for a redress of grievances. The First Amendment is applicable to the states through the Due Process Clause of the 14th Amendment. General principle: the government may not interfere with or distort the marketplace of ideas, especially with respect to political speech.

Freedom of Expression (OL IX. B.) First Amendment

Congress and states cannot pass a law that either favors or prohibits the establishment and free exercise of religion. The First Amendment applies to both the federal government through the Constitution and the states through the 14th Amendment.

Freedom of Religion and Separation of Church and State

Any additional evidence derived from the initial illegality, including oral statements and physical objects falls within the scope of the exclusionary rule. Always ask if there is a "but for" connection between the evidence the prosecution seeks to admit and a violation of the defendant's constitutional rights. If so, the evidence falls within the fruit of the poisonous tree doctrine. A Miranda violation does not qualify as a "poison tree" and cannot be invoked as the basis to exclude evidence derived from the inadmissible statement. The only consequence of a Miranda violation is inadmissibility of the confession in the prosecution's case-in-chief.

Fruit of the Poisonous Tree Doctrine

If a "but for" connection exits between a prior constitutional violation (normally an unreasonable arrest) and a suspect's statement, the statement may be inadmissible fruit of a poisonous tree unless the government can prove an exception, even if it complies with the rules above. Attenuation is the most common exception asserted to use a statement resulting from a "but for" link to a constitutional violation (poison tree). Effective attenuation will depend on how "potent" the poison was - the more flagrant the violation, the harder it is to attenuate. If an arrest is unreasonable because police failed to obtain a required warrant, but nonetheless had probable cause, that will normally be dissipated by a valid Miranda waiver so long as the statement made immediately following the arrest If an arrest is unreasonable because police did not even have probable cause, the taint is much more difficult to dissipate, and will normally require more than just a Miranda waiver.

Fruit of the Poisonous Tree and Confessions

The doctrine of frustration of purpose may be available to excuse the receiving party from its contractual obligations where a contingency occurs that dramatically reduces the value of performance to the receiving party. The Modern Test The contemporary version of this rule will discharge a party's contractual obligations when the following three requirements are met: (1) The party's principal purpose in entering the contract is frustrated, a) This means that the frustration of incidental or non-material purposes would not trigger the excuse of frustration of purpose. (2) the frustration was substantial in nature, and, 3) the non-occurrence of the event precipitating frustration must have been a basic assumption of the contract.

Frustration of Purpose

Frustration of purpose (like mistake, impossibility and impracticability) operates as a default rule. If a contract allocates the risk of the non-occurrence of an event that would frustrate a party's purpose, the excuse of frustration of purpose becomes unavailable. NOTE: Frustration of purpose, as an excuse to performance of a contractual obligation, is available under both the Common Law and the UCC.

Frustration of Purpose and the Contractual Allocation of Risk

1. Finder of fact (usually the jury) decides: a. whether the asserted writing (the original) ever existed; b. whether another writing produced at trial is the original; c. the accuracy of the writing; and d. the jury has the final decision on whether the item is genuine and how much weight to give it. 2. Compare: The judge determines preliminary facts (Rule 104(b)): a. whether the Best Evidence Rule applies to the writing; b. whether good cause exists for non-production of the original; and c. whether summaries are admissible.

Functions of Court and Jury (Rule 1008)

EXAMPLE: "A to B for life, remainder to C." B has a life estate. During B's life, he chooses not to use the property, adverse possessor comes on and adversely possesses against B. He only acquires B's life estate but cannot get the remainder interest in C.

Future interests cannot be obtained by adverse possession until they become presently possessory.

(1) A future-advance mortgage is any line of credit where money can be borrowed as it is needed. (2) Arrangement today, but money not borrowed yet—when mortgage arrangement entered into, if notice given to future lenders (recordation), priority will be determined at time mortgage arrangement entered into.

Future-Advance Mortgage

(1) When police act in good faith reliance on an invalid warrant, the evidence seized will not be subject to exclusion. If the magistrate made a mistake in issuing the warrant because of a lack of probable cause, the evidence is admissible so long as a reasonable officer would have relied on the warrant. (2) This rule extends to an arrest in reliance on an arrest warrant that should have been purged from the system by the police. No exclusion with police error so long as the error was isolated negligence. (3) If a is search conducted in reliance on judicial precedent that changed prior to the cases coming to trial and police make a reasonable mistake about what the law required, it's admissible.

Good Faith Exception

A grand jury reviews prosecution's evidence and then decides whether or not to indict. An indictment is a written accusation stating charges against the defendant. The "target" of the investigation has no right to be present during the grand jury proceeding. The "target" has no right to counsel if called to testify. No Confrontation right. Miranda warnings need not be given to "targets" who testify, because they are not in custody. The "target" may assert privilege against self-incrimination.

Grand Jury Indictment

Courts want to honor the wishes of the grantor versus Courts want to keep property on the market

Grantor Sovereignty v. Free Alienability

Two sets of books: 1) Arranged by name of grantor 2) Arranged by name of grantee Conveyance is recorded in both books. (1) Searcher looks back in time in the grantee-grantor index, (2) Searcher looks forward in time in the grantor-grantee index to see if any grantor conveyed an interest to someone outside of the backwards chain

Grantor-Grantee Index (Majority)

There are several specific factors that courts use to analyze the "injustice" requirement in an exacting way: 1) the strength of proof of the other three requirements; 2) the blameworthiness, or willfulness, of the breach; 3) the relative position or equities of the parties; 4) the extent to which the reliance was detrimental; and 5) the availability of alternatives short of enforcing the promise.

Gratuitous Promises and Promissory Estoppel Injustice without enforcement

A defendant can remove a case from state to federal court if the case could have originally been filed in federal court. In determining whether removal is permissible, the federal court simply determines whether it would have had subject matter jurisdiction over the suit (using federal question, diversity, and supplemental jurisdiction) had the plaintiff started in federal court to begin with. Counterclaims, cross claims, and impleader claims (we will discuss these later) are not sufficient, on their own, to permit removal.

Grounds for Removal

Where the plaintiff is not expliclty named by the defendant, plaintiff must allege that it is of or concerning her to prove liability. A large group cannot be defamed. In a small group, every member can bring a claim. Some statements may not be defamatory on its face - i.e. stating two people are dating (when subtext is that one of them is married)

Group Defamation Subtext defamation

Promises to pay someone else's debt if they don't pay it normally need to be in writing. EXCEPTIONS: (1) Creditor discharges the original debtor from his obligation on the faith of a guarantee by a third party to pay the debt. This protects the creditor, who knows the guarantor won't have recourse to a Statute of Frauds defense. (2) The "Main Purpose" Doctrine - where the main purpose of the guarantor is to protect his own economic interests, the guarantee agreement is not governed by the Statute of Frauds. The mere presence of a selfish interest is not sufficient to trigger this exception; it must be central to the promise.

Guaranty/Suretyship Agreements

A defendant may be convicted based only upon a voluntary and intelligent plea. To be intelligent, the accused must be informed of the general nature of the offense he is pleading guilty to. A plea of guilty waives: (a) the right to trial by jury, (b) the right to confrontation and compulsory process, (c) the privilege against self-incrimination, and (d) the presumption of innocence. Alford plea: a defendant pleads guilty without admitting guilt In such cases, other evidence (like police reports) must be admitted to the record to support the court's finding of guilt.

Guilty plea

A statement (FRE 801(a)) is either: a. An oral or written assertion, intending communication or b. Assertive conduct: Conduct intended as an assertion Assertive conduct is conduct intended to communicate as a substitute for words. a. Examples: (1) pointing a finger to give directions (2) shaking a head yes or no (3) MBE: a sketch by a police artist 5. Non-assertive conduct is NOT intended as a statement, therefore it is NOT hearsay. I.e., conduct that is NOT intended to communicate. Examples: (1) Videotape showing defendant's demeanor; drunk or stumbling. (2) Defendant walking with a limp or with an unsteady gait due to injury or intoxication (3) Defendant speaking with slurred speech; how she said it. A statement must be: a human statement, not one made by an animal or machine Examples: (1) alarm clock; (2) church bell chiming; (3) radar measuring speed of car; (4) printout of wind speed (computer printout where it processes human input); (5) time/temperature display; (6) talking parrot.

Hearsay - what is a statement?

(a) Evidence that a matter is NOT included in records or data compilations kept in accordance with the business or public records rules may be admitted to prove the non-occurrence of the event or the non-existence of the matter. (b) Foundation: Witness must testify: he is familiar with the records, that he diligently searched, and that he found no record of the event

Hearsay Exceptions Absence of Entry in Records: FRE 803(7) (Proving a Negative)

The following are NOT excluded by the hearsay rule, and the availability of the declarant is immaterial. (1) Present Sense Impression: FRE 803(1) (2) Excited Utterance: FRE 803(2) (3) Then-Existing Mental, Emotional, or Physical Condition: FRE 803(3) (4) Statements for Purposes of Medical Diagnosis or Treatment: FRE 803(4) (5) Past Recollection Recorded: FRE 803(5) (6) Records of Regularly Conducted Activity: FRE 803(6) (Business Records Exception) (7) Absence of Entry in Records: FRE 803(7) (Proving a Negative) (8) Public Records and Reports: FRE 803(8) (9) Records of Vital Statistics: FRE 803(9) (10) Records of Religious Organizations: FRE 803(11) (11) Marriage, Baptismal, and Similar Certificates: FRE 803(12) (12) Family Records: FRE 803(13) (13) Records of Documents Affecting an Interest in Property: FRE 803(14) (14) Statements in Ancient Documents: FRE 803(16) (15) Market Reports, Commercial Publications (16) Learned Treatises: FRE 803(18) (Expert Exception) (17) Reputation Among Associates, Family Members Concerning Personal or Family History: FRE 803(19) (18) Reputation Concerning Boundaries or General History: FRE 803(20) (19) Reputation as to Character: FRE 803(21) (20) Judgment of Previous Conviction: FRE 803(22) (21) Judgment as to Personal, Family, or General History, or Boundaries: FRE 803(23)

Hearsay Exceptions Availability of Declarant Immaterial (Rule 803)

(a) A statement relating to: a startling event made while the declarant was under the stress of excitement caused by the event or condition (b) Characteristics and requirements: 1) startling event (exclamation point not required) 2) personal knowledge is required 3) Unlike present sense impression, statement need not be immediate EXAMPLE: Statement by rape victim to her mother 90 minutes AFTER assault that "Jim attacked me." EXAMPLE: "My husband just tried to strangle me." "My husband is so mad, I think he might try to kill me."

Hearsay Exceptions Excited Utterance

Statements of fact concerning personal or family history contained in ---- family bibles; ---- genealogy charts; ---- inscriptions on family portraits; ---- engravings on tombstones, urns, crypts, etc. REMEMBER, admissibility versus weight to be given. EXAMPLE: Ceramic egg inscribed with "To Chris, age 13, Easter April 14th, 1987" to prove that Chris was 13 on that date.

Hearsay Exceptions Family Records

Evidence of a final judgment of conviction if: (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea; (B) the conviction was for a crime punishable by death or by imprisonment for more than a year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. The pendency of an appeal may be shown but does not affect admissibility.

Hearsay Exceptions Judgment of Previous Conviction: FRE 803(22)

Includes statements made in treatises such as textbooks, journals, periodicals, or hornbooks May be read into evidence once foundation of authoritativeness has been established by---- (a) judicial notice, (b) expert testimony (your expert or your opponent's expert); or (c) by stipulation Subject area: MASH: Medicine, Art, Science, History Learned treatises are often offered to contradict or impeach an expert witness on cross-examination. Remember, admitted substantively under the FRE, many states ONLY to impeach. Caveat: The treatise being used must be read to the jury, but not physically given.

Hearsay Exceptions Learned Treatises

Includes statements of objective facts, not opinions. EXAMPLE: Telephone directories; credit reports; retail sales catalogs; Kelly Blue Book; the Yellow Pages; Wall St. Journal.

Hearsay Exceptions Market Reports, Commercial Publications

Past written statements by a witness used to jog the witness's memory. 1. Memorandum or record, Can be text, recording, calendar notation, or note - anything that allows the witness to remember. 2. Concerning matter witness once had knowledge, Must show that it belonged to the witness. Can be their handwriting, signed by them, etc. 3. Can't remember now, Refreshing (Rule 612) by a leading question or a writing must have been attempted and failed. Witness must lack current memory of the event. 4. Was made and adopted when memory was fresh and accurately reflects knowledge How can a witness claim this if they don't remember? If a statement is in their handwriting, has their signature, they can claim that it's theirs. Authentication: Witness must testify that the writing accurately reflects the witness's prior knowledge—i.e., witness made or adopted the statement if written by someone else Admittance of writing? The witness may read the record, but it cannot be admitted unless it is offered by the adverse party.

Hearsay Exceptions Past Recollection Recorded: FRE 803(5)

Rights of the adverse party: 1) inspect the writing; 2) cross-examine with it; 3) show it to the jury for comparison; 4) introduce relevant portions into evidence. a) Only to impeach? No. As substantive evidence? Yes. Now since proponent is using the evidence for its truth, the opponent can as well.

Hearsay Exceptions Past Recollection Recorded: FRE 803(5) Rights of the adverse party:

A statement made by the declarant: describing or explaining an event or condition made while or immediately after perceiving it Characteristics and requirements: 1) spontaneity - timing 2) declarant need not be known or available; still need FHK 3) an unexcited utterance; boring subject matter 4) can be oral or in writing (911 tape) EXAMPLE: Someone on the phone saying, "Joe just walked in."

Hearsay Exceptions Present Sense Impression: FRE 803(1)

Records, (1) prepared pursuant to a duty imposed by law, (2) setting forth the activities of a public office or agency, (3) prepared in a way that does not suggest untrustworthiness. In civil cases: factual findings from official investigations pursuant to authority granted by law provided findings are trustworthy. Certified copies are self-authenticating. In criminal cases, this category DOES NOT include matters observed by police officers and other law enforcement personnel ---- however, if the police report is offered by the accused it can be admitted.

Hearsay Exceptions Public Records and Reports: FRE 803(8)

(1) A memorandum, record, or report of acts or events, (2) made at or near the time of the event, (3) by a person with knowledge, Need not have personal knowledge of contents (3) if kept in the course of a regularly conducted business activity, (4) if it was the regular practice of that business to make such a record or report, as shown by affidavit or by the testimony of the custodian or other qualified witness, (5) provided the information does not lack trustworthiness. Trustworthiness is determined by the judge Records may not be made solely in anticipation of litigation NOTE: Police accident reports are better to be brought as public records under FRE 803(8) because they are generally prepared in anticipation of litigation and testified to in subsequent litigation.

Hearsay Exceptions Records of Regularly Conducted Activity: FRE 803(6) (Business Records Exception)

Records or data compilations of births, deaths, or marriages are admissible if: the report was made to a public office pursuant to requirements of law

Hearsay Exceptions Records of Vital Statistics: FRE 803(9)

This exception deals only with the hearsay aspect of this kind of evidence. Limitations upon admissibility based on other grounds will be found in Rules 404, relevancy of character evidence generally, and 608, character of witness. The exception is in effect a reiteration, in the context of hearsay, of Rule 405(a). Know your issue: Is it character or hearsay the question is asking about? Answer appropriately.

Hearsay Exceptions Reputation as to Character: FRE 803(21)

Includes statements made for purposes of medical diagnosis or treatment describing medical history; past or present symptoms; pain; sensation; or the cause. Statement can be made to any medical personnel or declarant's family member The statement must be one which is useful for diagnosis and treatment. Statements admitting or assessing fault are NOT included. Try to redact first. If forced into all or nothing, don't let it in.

Hearsay Exceptions Statements for Purposes of Medical Diagnosis or Treatment: FRE 803(4)

(1) Found in a place where these items are typically found. Think archives, library, even shoebox (2) Document in existence 20 years or more (3) Authenticity of document must be established

Hearsay Exceptions Statements in Ancient Documents

A statement of declarant's then-existing physical, emotional, or mental condition is admissible if relevant to show declarant's state of mind. Includes statements to prove intent, plan, motive, design, mental feeling, pain, or bodily health. This exception DOES NOT include past sensation, statements of memory, or statements of belief. EXCEPTION: If the statement of memory relates to the execution, revocation, identification, or terms of declarant's will, then it will be admissible.

Hearsay Exceptions Then-Existing Mental, Emotional, or Physical Condition

A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the hearsay rule). NOTE -- The threatening actions themselves may be admissible to show consciousness of guilt

Hearsay Exceptions: Declarant Unavailable (Rule 804) Forfeiture by Wrongdoing

1. Witness is unavailable, 2. Witness testified under oath at a prior proceeding, Examples: deposition, testimony given in preliminary hearing, judicial proceedings - NOT grand jury proceeding 3. At that time, witness was cross-examinable, and 4. The witness was cross-examinable by the same party as the evidence is being offered against, OR the witness was cross-examinable by a predecessor in interest with opportunity and similar motive to cross-examine.

Hearsay Exceptions: Declarant Unavailable (Rule 804) Former Testimony:

Statement must concern: (a) the declarant's own relationship by blood, adoption, or marriage, or, (b) other similar fact of personal or family history.

Hearsay Exceptions: Declarant Unavailable (Rule 804) Statement of Personal or Family History

Statement of: 1) unavailable 2) non-party (generally) 3) against pecuniary ($), proprietary (property), penal (jail) interest when made Do not confuse this with a Statement by a Party Opponent: Personal knowledge NOT required for SPO; Personal knowledge is required for: a declaration against interest NOTE: Where the defendant offers an exculpatory statement against the declarant's penal interest in order to prove his innocence, the additional element of corroboration is required to insure trustworthiness.

Hearsay Exceptions: Declarant Unavailable (Rule 804) Statements Against Interest:

1. Declarant unavailable, 2. Homicide prosecution or civil action, 3. Declarant believed death was imminent, and Declarant does not need to actually die. 4. Statement concerns the cause or circumstances of the impending death. Declarant does not need to be correct regarding the cause of death. Declarant does not need to have personal knowledge.

Hearsay Exceptions: Declarant Unavailable (Rule 804) Statements Under Belief of Impending Death

(1) Privilege: assertion of a privilege (based on the judge's ruling, the privilege applies - FRE 104) (2) Refusal: Refusal to testify despite a court order (3) Incapability: incapacity (incapability) due to death or thenexisting physical or mental illness (4) Subpoena: Absence of a witness despite a good-faith attempt to procure witness' attendance (i.e., subpoena) (5) Memory: witness testifies as to a lack of memory Burden: The proponent of the testimony bears the burden to prove declarant is unavailable

Hearsay Exceptions: Declarant Unavailable (Rule 804) What makes a declarant unavailable under the Federal Rules of Evidence?

Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware that a conspiracy exists. Requirements: (1) Proof of existence of a conspiracy (by a preponderance of the evidence) (2) Declarant is member of conspiracy (3) Statement was made in furtherance of the conspiracy (4) Statement was made during the existence of the conspiracy

Hearsay Exemptions Co-conspirator's Statements

Requirements: (1) Declarant must: testify at the trial or hearing (2) Declarant must: be subject to cross-examination concerning the statement, (3) The statement must be either: (a) . prior inconsistent statement; note now this is offered for its truth (b) . consistent statement - only to rehabilitate witness (c) . statement of prior identification (4) Must be a criminal trial (inadmissible at civil trial)

Hearsay Exemptions Prior Statements

Must only be offered to rebut a charge of recent fabrication or improper influence or motive. Used to rehabilitate the witness after an inference of recent fabrication has been raised Limited use, as the statement MUST PREDATE the motive to lie.

Hearsay Exemptions Prior consistent statement: FRE 801(d)(1)(B)

A prior statement of identification of a person made after perceiving him can be admissible. The basis for admissibility is the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions. For all three (PINS, PCS, and Prior ID), the declarant MUST: testify at trial and be subject to cross-exam; otherwise, confrontation clause problems arise

Hearsay Exemptions Prior identification: FRE 801(d)(1)(C)

A prior inconsistent statement is permitted to be offered for its TRUTH if (a): it is "sworn" - subject to penalty of perjury (under oath) AND (b) it is at a trial, (c) it is at a deposition, (d) it is at a grand jury proceeding, (e) it is at a preliminary hearing, or other proceeding Affidavits aren't sufficient

Hearsay Exemptions Prior inconsistent statement (PIS): FRE 801(d)(1)(A)

By conduct or silence Adoptive admission: There must be evidence sufficient to show: the party heard and understood the statement and adopted it as her own An admission by silence requires: that a reasonable person would have denied the statement. Think stolen watch versus cheating husband. Once a party has been advised of his right to remain silent: Not applicable where defendant has been given Miranda warnings, cannot comment on post silence

Hearsay Exemptions Statement by a Party Opponent (SPO's) (Formerly Admission) Adoptive admission

Types (1) Direct statement by a party (2) Adoptive admission—either by conduct or silence (3) Authorized admission (4) Vicarious admission (5) Admission by a co-conspirator

Hearsay Exemptions Statement by a Party Opponent (SPO's) (Formerly Admission) Types of Statements

Employee admission (vicarious admission): A statement of a party's employee offered against the party by the opponent. The statement must: (a) be made during the existence of the employment relationship and (b) concern a matter: within the scope of employment

Hearsay Exemptions Statement by a Party Opponent (SPO's) (Formerly Admission) Vicarious admission

An out-of-court statement, other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted A declarant is: the person making the statement; THINK MOUTHPIECE. NOTE: Beware the out of court declarant appearing in court. The problem is not whether we have a chance to cross examine the person at SOME TIME, rather that we cannot test those words, thoughts, feelings at THE TIME OF THEIR UTTERANCE.

Hearsay Generally

Hearsay is NOT ADMISSIBLE except as provided by the Federal Rules of Evidence, or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

Hearsay Rule (Rule 802)

a. When faced with two (or more) out-of-court statements: both the primary statement and the included statement must have a separate basis for admissibility. Otherwise, the entire statement is inadmissible b. Common situations include business records, medical records, or charts.

Hearsay Within Hearsay (Rule 805) (Multiple Hearsay)

a. Deadly force is permitted only: in response to an imminent threat of death or great bodily injury. b. The first aggressor may not claim self-defense because the first aggression results in "unclean hands." (1) At common law, an aggressor could regain the right of self-defense: only by complete withdrawal perceived by the other first victim. (2) Modern jurisdictions restore the first aggressor to the right of self-defense (cleans his hands) if: the first victim responds to the aggression with excessive force.

Homicidal self-defense (deadly force).

Homicide is a killing of a human being caused by another human being. Criminal homicide is the unlawful killing of one human being by another.

Homicide

A criminal homicide results when the defendant is the legal cause of the death of another human being with a criminal state of mind and without legal excuse or justification.

Homicide A killing is unlawful when it:

Horizontal = contractual privity (between LL/T) Vertical = privity between successors in interest

Horizontal Privity v. Vertical Privity

A warrantless search for a suspect is lawful when:police are in actual "hot pursuit" of the suspect to apprehend him. Police may: 1. enter and search a private dwelling while in hot pursuit of the fleeing suspect. Police may enter the private dwelling of the suspect or of another person. 2. execute a warrantless arrest of the suspect in the premises and 3. seize any contraband they observe in plain view pursuant to a hot pursuit entry of a premises.

Hot Pursuit

The Federal Rules of Civil Procedure offer plaintiffs two options for serving process. Option 1: Serve process in the manner prescribed by the state court in the state where the federal suit has been filed OR by the state court in the state where the defendant will be served. Of course, state rules will only be sufficient if they comply with constitutional minimums. Option 2: Serve process in the manner specified in Federal Rules of Procedure

How May Process Be Served?

To serve a corporation, partnership, or association, the process server has three options: 1) serve process on an officer; 2) serve process on a managing agent or general agent; or 3) serve process on any other agent authorized by appointment or by law to receive service. The agent is one authorized by law to receive service and the law requires service by mail, service must be served by hand and by mail.

How May Process Be Served? - Corporations, Partnerships, or Associations

When suing a natural person, the process server has 4 options: 1) deliver the process to the defendant himself wherever he may be; 2) leave process at the defendant's usual place of abode with a person of suitable age and discretion residing there 3) serve the defendant's registered agent; or 4) mail process to the defendant with a letter requesting that the defendant waive service in person. If the defendant declines to waive in-person service, he is responsible for the costs of personal service.

How May Process Be Served? - Natural Persons

1. Termination by lapse of time 2. Termination by death or incapacity of either party 3. Termination by offeror's revocation 4. Termination by offeree's rejection

How might the power of acceptance be terminated?

(1) Covenants when breached lead to an award of damages. (2) Equitable servitudes will lead to the granting of an equitable remedy such as an injunction.

How to distinguish between covenants and equitable servitudes (remedy)

Applies to ALL types of identifications, at ALL stages of the investigatory and prosecutorial process. If a defendant can prove that an identification procedure used by the government was so *unnecessarily suggestive* that it created an *irreparable risk* of mistaken identification the procedure will violate due process and the identification is inadmissible. The focal point of this due process test is reliability, which requires defendant to prove both: (a) That the procedures used were: unnecessarily suggestive (b) That the suggestiveness: produced an unreliable identification. c. Use of inherently suggestive procedures because doing so is necessary under the circumstances does not violate due process. d. When an out-of-court identification is excluded because it violates due process a subsequent in-court identification by the same witness will normally be excluded as fruit of the poisonous tree.

Identifications of a Defendant - The Due Process Standard

Class action adjudication is proper in any of the three instances below. (a) Where separate actions would create a risk of inconsistent judgments or judgments that would substantially impair the ability of a nonparty member to protect his interests. (b) Where the party opposing the class has acted in ways generally applicable to the class. (Note that class adjudication under this option is unlikely, but not impossible, if the suit seeks monetary relief.) (c) Where the court finds that common questions of law or fact predominate over individualized questions and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy .

If a class can be formed, is the suit nonetheless proper for adjudication as a class action?

If language is ambiguous courts may interpret it as an attempt to create a fee simple subject to a condition subsequent, though this often fails and becomes a fee simple absolute for lack of a specific power of termination. Note: courts disfavor forfeitures. EXAMPLE: "O to A; provided, however, that liquor may not be served on the premises." Without the power of termination stated in the grant, A has fee simple absolute. O can sue on the broken covenant for any damages.

If grantor's language creating a fee simple to condition subsequent does not expressly reserve power of termination...

(1) The results of the lineup (the identification) are per se inadmissible at trial. (2) The witness will be prohibited from making a subsequent in court identification of the defendant unless the prosecution can prove by clear and convincing evidence that the in court ID is independent from the inadmissible out of court ID.

If police conduct a corporeal lineup in violation of the Sixth Amendment right to counsel:

(1) The warrant was not based on: probable cause (2) The magistrate was not neutral or detached (3) The warrant: failed to describe with particularity the thing to be seized or the place to be searched Even if a warrant is determined invalid, the evidence may still be admissible pursuant to the good faith exception to the exclusionary rule. Exclusion requires the additional determination that police acted unreasonably when they relied on the warrant.

If police obtain a warrant to conduct the search or seizure, it creates a presumption of reasonableness. To challenge the search or seizure, the defendant bears the burden of rebutting this presumption by proving:

The physical harm occurs to a loved one, and the plaintiff sues for his emotional distress as a result of the injury to another. Many jurisdictions require the bystander to have been in the zone of danger. (However, most courts have now adopted some version of the bystander liability rule. A plaintiff may recover for negligent infliction of emotional distress under a bystander theory if he (1) was located near the scene of an accident; (2) suffered severe emotional distress; and (3) had a close relationship with the victim.) Some jurisdictions allow plaintiffs outside the zone of danger but on the scene of the injury to recover for emotional distress.

If the plaintiff's injury is not personal injury or property damage, duty issues arise. Emotional Distress Bystander Actions

Defendant engages in negligent conduct and as a result, the plaintiff suffers emotional distress and some sort of physical manifestation. In most jurisdictions, to recover for emotional distress the plaintiff must (1) have been in the zone of danger -- that is, the area in which he was at risk of being physically injured; and 2) have suffered some accompanying physical manifestation of the emotional distress Exceptions: a) If defendant negligently transmits a telegram announcing the death of a loved one; and b) If defendant negligently mishandles a corpse. In a minority of jurisdictions, if defendant has a preexisting duty to plaintiff, plaintiff may recover for negligent infliction of emotional distress.

If the plaintiff's injury is not personal injury or property damage, duty issues arise. Emotional Distress Direct Actions

Wrongful birth is the claim of the parents for the birth of an unhealthy child. (a) Wrongful birth claims generally stem from a physician's failure to diagnose a disability in the fetus, which plaintiff claims would have led her to not give birth to the child. (b) Damages: Some courts will award the extraordinary costs of having a child with special needs, but the jury may offset this award by the benefit obtained from having the child.

If the plaintiff's injury is not personal injury or property damage, duty issues arise. Wrongful Birth

On the MBE, this is usually a wrong answer due to the jurisdictional splits. But this can be tested easily as follows: Wrongful conception applies where the injury is the birth of a healthy but unwanted child. (a) Damages typically involve the cost of the birth and the cost to rectify the ineffective contraceptive measure.

If the plaintiff's injury is not personal injury or property damage, duty issues arise. Wrongful Conception

Wrongful life is the child's action for having been born unhealthy.

If the plaintiff's injury is not personal injury or property damage, duty issues arise. Wrongful Life

In a tenancy by the entirety, any attempted conveyance by either spouse is void. Severance occurs only when: (1) they jointly convey to another (2) one conveys to the other or (3) they divorce

Severance of Tenancy by the Entirety

(1) there is at least one signed writing unambiguously establishing a contractual relationship between the parties, (2) the signed and unsigned documents clearly refer to the same subject matter, (3) there is clear and convincing evidence of acquiescence to the unsigned documents by the party against whom enforcement is sought.

If unsigned documents are not incorporated by reference in a signed document, "tacking together" the signed and unsigned documents to satisfy the Statute of Frauds is nevertheless permissible if:

Intermediate Scrutiny EXAM TIP: If there is a question with discrimination based on illegitimacy on the bar exam, it will probably be unconstitutional. This sort of discrimination serves no important governmental interest.

Illegitimacy - level of scrutiny?

An illusory promise is a promise to perform that leaves performance to the discretion of the promising party. B/c these are vague, they do not constitute consideration.

Illusory Promises

If a vehicle is incapable of locomotion, or is parked in an area indicating it is not being used as a conveyance, the automobile exception the *automobile exception is incapable*. However, this is a very narrow limitation— being parked in a parking lot in a place where automobiles normally stop temporarily does not trigger this limitation. Motorhome in Costco parking lot is a car. Motorhome on cinderblocks is a home.

Immobile vehicles

The exclusionary rule does not apply to the use of tainted evidence to *impeach the defendant's testimony* A defendant can't hide behind the exclusionary rule to lie under oath.

Impeachment

Extrinsic evidence on collateral matters is: inadmissible to impeach. Extrinsic = other witnesses / documentary evidence A collateral matter is evidence solely affecting the credibility of a witness. If the extrinsic evidence has relevance beyond suggesting some propensity to say things that are not true, then the evidence is not collateral. Does not apply to bias / prejudice evidence.

Impeachment Collateral Matter Rule

The credibility of a witness may be attacked by any party, including the party calling him.

Impeachment Who May Impeach (Rule 607)

A defendant is either at fault in starting an altercation or unreasonably, but honestly, believed that harm was imminent or deadly force was necessary. Such mistaken justification has been applied to self-defense, defense of others, crime prevention, coercion, and necessity. Imperfect self-defense may mitigate murder to voluntary manslaughter.

Imperfect Self-Defense

Under UCC, installment contracts are contracts that contemplate the delivery of goods in separate lots to be separately accepted by the buyer. When a particular installment occasions a non-conforming tender, there are three possibilities that the UCC deals with: a) If the non-conforming tender substantially impairs the value of the whole contract: there is a breach of the whole contract b) If the non-conforming tender substantially impairs the value only of this particular installment: buyer can reject the installment but cannot cancel the entire contract c) If the non-conforming tender does not even substantially impair the value of this particular installment: buyer must allow seller opportunity to cure the non-conformity within reasonable time

Imperfect Tenders in the Context of an Installment Contract

A defendant has an automatic right to implead a third party defendant if he does so within 14 days of serving an answer. If 14 days have already elapsed, a defendant may only implead a third party defendant with the permission of the court.

Impleader Claims (Rule 14) Timing

Plaintiff is barred from recovery or recovery is reduced under the assumption of the risk doctrine if defendant establishes that: (a) plaintiff had knowledge of and appreciated the nature of the danger involved; (b) plaintiff appreciated the specific danger that injured him; and (c) plaintiff voluntarily chose to subject himself to that danger. Primary assumption of the risk: In certain contexts, a defendant has no obligation to act non-negligently towards the plaintiff. There is no duty owed.

Implied Assumption of Risk

When the possibility of a breach is not addressed by an express condition, it is still a breach; however, under the law of implied conditions, courts can treat that breach in one of two ways: either as a material breach or as substantial performance.

Implied Conditions

If the breach is material, the court will treat the breach in the same way it would treat a failure of an express condition. The aggrieved party is generally discharged from his own performance obligations. If the breaching party has rendered substantial performance, the aggrieved party will not be discharged of his own performance obligations. Distinguishing between material breach and substantial performance: 1. the extent to which the aggrieved party will be deprived of the benefit that she reasonably expected to receive under the contract; 2. the extent to which the aggrieved party can adequately be compensated via damages for the defective performance; 3. the extent to which the breaching party will suffer forfeiture if a material breach is found; 4. the likelihood that the breaching party will cure his failure; and 5. the extent to which the breach was willful or in bad faith rather than merely negligent or innocent.

Implied Conditions - Material Breach versus Substantial Performance

Implied malice is established by proving that the defendant caused a death as the result of extreme reckless or criminally negligent conduct that manifested a wanton disregard for the value of human life. Implied malice may be established even where the killing was unintentional. Malice is also implied for depraved heart and felony murder conviction.

Implied Malice

Even if a contract does not contain an expressly stated condition, a condition regarding a subject as to which the contact made no express mention may arise by necessary implication from the nature of the agreement and the performance to be rendered. A condition arises by necessary implication if the parties would likely have included an express provision if they had thought to address the subject in their agreement.

Implied contractual provisions

An implied reciprocal servitude exists where a landowner sells lots with restrictions that benefit his retained land. The restriction becomes mutual, benefit his land and the land sold.

Implied reciprocal servitude

Implied-in-fact contractual obligations are *where agreements are formed conduct, rather than words* Cause of action = quantum meruit EXAMPLE: Homeowner hires a plumber to fix a leak, but because of the urgency of the service, the parties do not discuss the price of the work performed. Upon completion of the work, Homeowner has an implied-in-fact obligation to pay the plumber the reasonable value of the services rendered.

Implied-in-fact contractual obligations

The doctrine of impossibility excuses both parties from their obligations under a contract if the performance has been rendered impossible by events occurring after the contract was formed. REQUIREMENTS -- (1) The impossibility must be objective, and, (2) The contingency that creates the impossibility was not known to the parties at the time of making the contract. That is, the contingency arose after the making of the K and was not anticipated by the parties. Note: Impossibility, as an excuse to performance of a contractual obligation, is available under both the Common Law and the UCC.

Impossibility

Under the doctrine of impracticability, a promisor may be excused from performance where the following two elements are proven: 1) The contingency causing the impracticability was unforeseeable at the time of contracting 2) The increase in the cost or burden of performance would be far beyond what either party anticipated. NOTE: Impracticability, as an excuse to performance of a contractual obligation, is available under both the Common Law and the UCC.

Impracticability

1. Defamatory message 2. Pleading problems

In analyzing an action for defamation, one must check for:

Shipment contract - when goods reach carrier (default) Destination contract - when goods reach destination point as specified in contract

In carrier cases, when does the risk of loss transfer?

a. A defendant generally is not liable for torts committed by someone he has engaged as an independent contractor, because defendant has no right to control the activity of the contractor. b. Whether a person is an independent contractor rather than an employee depends on whether the person who hired them dictates the means, method and manner. The more control exercised by the person who hired them, the more likely that person is an employee.

Independent Contractor

Incidental damages are the costs associated with securing cover (buying replacement goods).

Incidental Buyer Damages under UCC

Whether or not the seller resells, he is also entitled to recover incidental damages, which are *the costs associated with getting stuck with the goods, as well as the costs of resale*. However, the seller's *damages will be reduced by an amount reflecting expenses avoided on account of the breach* (you might save something b/c of the stiff)

Incidental Seller Damages under UCC

Third parties who will benefit from a promisor's promise as a practical matter, but are not either creditor or donee beneficiaries. Right place, right time - not intended to benefit. Tenuous connection to the contract. From 1st Restatement.

Incidental beneficiary

If the evidence is obtained from a lawful independent source it is admissible, even if police acted illegally to confirm the location of the evidence. In other words, exclusion is not justified when there is no "but for" connection between the police violation and the seizure of the evidence.

Independent source

A legal description of the tract of land followed by a chronological listing of all conveyances involving that piece of land. The search looks at the legal description of the tract of land followed by a chronological listing of all conveyances involving that piece of land. This type of search always provides constructive notice of a claim to property.

Indexes (Process of Recording a Conveyance) Tract Index (Minority)

Evidence that is obtained through a poison tree will still be admissible if the police can establish they would have inevitably discovered the evidence through an independent source. It's essential that the government prove that independent discovery was truly inevitable. Look to see if the gears of independent discovery had already been set in motion.

Inevitable discovery

Infancy is the time period before a person reaches the age of majority. An infant, commonly referred to as a minor, is any person who is under the age of 18. The modern rule: Minors may enter into a contract, but the contract is voidable at the option of the minor. EXCEPTIONS - Necessaries, misrepresentation by minor The special case of minors who are married or emancipated -- (a) The majority rule: Minors enjoy the power of avoidance even if they are emancipated or married. (b) The minority rule: Marriage or emancipation eliminates the power of avoidance.

Infancy/Minors

Reasonable suspicion may be established by an informant's tip coupled with police investigation that corroborates the accuracy of the informant's predictions. Unlike the test for probable cause, which requires the tip to provide predictive inside information, reasonable suspicion is established by: *verifying the informant's predictions* (even if they are not insider predictions). But a tip that provides nothing more than *existing information*, even if corroborated by police investigation, does not establish even reasonable suspicion.

Informant Tips and Terry Stops

(1) Juror misunderstood the evidence or the instructions. (2) Jury reached its verdict improperly (drawing straws or quotient verdict). (3) MBE: Jurors drank alcohol and smoked marijuana during deliberations. (4) One juror physically bullied another regarding his vote. (5) Juror fell asleep during deliberations.

Inquiry into the validity of a verdict or indictment (Rule 606(b)) Examples where a juror's testimony will be EXCLUDED when challenging a verdict

If the defendant is legally insane at the time of his criminal act, no criminal liability will be imposed. Four tests for insanity are followed in various jurisdictions. (a) The M'Naghten Test (b) The "irresistible impulse" Test (c) Model Penal Code Test (d) Durham / New Hampshire Rule

Insanity

d. Under the Durham (or New Hampshire) Rule, also known as the "product" rule: A defendant is not criminally responsible if: it was the product of a mental disease

Insanity Durham / New Hampshire Rule

c. Model Penal Code Test: The MPC modifies traditional insanity tests in two ways: (1) It "softens" the M'Naghten "incapable of knowing" standard requiring: the defendant lacked mental capacity (a) It is typically easier to establish MPC insanity because it does not require the total or absolute loss of cognitive ability or volition, only that the defendant lacked substantial capacity in these areas. (2) It combines the M'Naghten "cognitive" test (appreciate the criminality (wrongfulness) of his conduct) and the irresistible impulse "volition" test (conform his conduct to the requirements of law).

Insanity Model Penal Code Test

The "irresistible impulse" test: Defendant will be found not guilty where, as the result of a severe mental disease or defect: he was incapable of controlling his impulse to commit the crime

Insanity The "irresistible impulse" Test

The M'Naghten test, which focuses on the defendant's reasoning abilities. (1) Under this test, a defendant is relieved of criminal responsibility upon proof that at the time of commission of the act: (a) he suffered a severe mental disease or defect (b) as a result, he was unable to know 1) the nature and quality of his actions 2) his conduct was wrongful (2) Some jurisdictions will find that a defendant is not insane where, even though the defendant believes the act was not morally wrong, he knows it to be illegal. Others will find defendants who do not know an act was morally wrong to be insane regardless of their belief as to the act's legality.

Insanity The M'Naghten Test

Defendant must act with intent to cause severe mental distress or be reckless in creating the risk of emotional distress. No transferred intent doctrine, but because the mental state is broader, there are situations where third parties can recover for severe emotional distress by showing that the defendant was reckless as to whether their conduct would cause severe emotional distress. 

Intentional Infliction of Emotional Distress Mental State

(1) Desires to cause severe emotional distress, or, (2) knows that conduct is virtually certain to cause severe emotional distress.

Intentional Infliction of Emotional Distress Mental State - Intentional

Beyond the bounds of decency - conduct that a civilized society will not tolerate. Offensive or insulting language is generally not considered outrageous. Exceptions: (1) Defendant is engaged in certain callings such as an innkeeper or common carrier. (2) Defendant knows of the plaintiff's particular susceptibility. (3) Someone in a position of authority uses racial or ethnic insults against someone who is an underling.

Intentional Infliction of Emotional Distress The element of extreme and outrageous conduct is satisfied if the defendant's conduct is:

(1) there is some sort of fiduciary relationship; or (2) there is an ambiguous or misleading statement that creates reliance (3) defendant makes an assertion believing it to be true, subsequently discovers that it was false or that circumstances have changed, and fails to disclose the truth or changed circumstances (4) where defendant makes a false assertion not intending that anyone rely upon it, subsequently discovers that plaintiff intends to act in reliance upon the false assertion, and fails to disclose that the assertion was false

Intentional Misrepresentation (Fraud) Failure to disclose information is not a basis unless:

a. Defendant must intend that plaintiff or a class of persons of which plaintiff is a member will act or fail to act in reliance on his misrepresentation. b. Scienter is present when defendant makes a misrepresentation knowing it to be false or recklessly possessing insufficient information as to its truth or falsity.

Intentional Misrepresentation (Fraud) Mental state:

If Congress is acting within its constitutional powers, Congress may block the President from acting.

Interbranch Checks upon the Exercise of Federal Power (OL II. C.) Congressional Limits on the Executive

Congress can remove the President, federal judges and any federal official from office. The House of Representatives has the sole power to impeach. The Senate: has the sole power to try impeachments. A two-thirds vote in the Senate is required for conviction. Impeachment by itself does not carry any penalty beyond removal from office. What can get you impeached: 1) Treason 2) Bribery 3) Other high crimes and misdemeanors

Interbranch Checks upon the Exercise of Federal Power (OL II. C.) Congressional Limits on the Executive Impeachment Power

The only thing a court can do is to hold a federal law unconstitutional. Courts cannot enforce the judgments so they actually need cooperation from the official whose conduct they believe unconstitutional. Most often the president will comply.

Interbranch Checks upon the Exercise of Federal Power (OL II. C.) Judicial Limits on Congress and the President

a. Veto: every act of Congress must be approved and signed by the President before it can become law, or, being disapproved, must be passed by a two-thirds vote of each House. b. Pardon power: can pardon anyone convicted under a law that he does not like but that Congress has passed.

Interbranch Checks upon the Exercise of Federal Power (OL II. C.) Presidential Limits on Congress

Two elements: a. Defendant knows that there is: a contract between plaintiff and third party. b. Defendant acts with the purpose of having the contract breached or making it harder to perform.

Interference with Contractual Relations

Even in a sale of goods, the common law will apply unless the UCC provides contrary provisions. In other words, sometimes the UCC doesn't address the factual situation at issue, and vice versa. (1) Examples of common law filling in UCC gaps: *fraud, duress, or incapacity* (2) Examples of UCC displacing the common law: *firm offers and battle of the forms*

Interplay between UCC and common law

A party may file an interpleader claim when the party fears that it will be caught in the middle. That is, it fears that it will be exposed to multiple and inconsistent liability CONNECTION TO MANDATORY JOINDER Note that if a party decides not to sue a single party instead of multiple parties using an interpleader claim, the party left out be may be required to join as a necessary and indispensable party (discussed above) or may elect to intervene in the suit on her own (discussed immediately below). JURISDICTION By statute, federal courts are empowered to issue process and have it served nationwide, where a claimant might be found, in a statutory interpleader case. The service of the summons and complaint establishes personal jurisdiction over the defendant when the service is authorized by such a federal statute.

Interpleader Claims (Rule 22)

If parties have addressed a topic in their contract in an ambiguous way such that the resolution of the matter has been left unclear, the objective meaning of language trumps the subjective. EXCEPTIONS (1) One party has reason to know of the other party's subjective understanding, the first party is bound by that subjective understanding. (2) At the time of contracting, both parties have the same subjective understanding. Even if this understanding is at variance with the objective meaning of the contractual language, it will control the final contract.

Interpreting Ambiguous Language - Objective Meaning versus Subjective Meaning

For Miranda *Interrogation* is direct questioning (anything ending with a question mark) reasonable Interrogation focuses on *"the reasonable officer"*, unlike custody, which focuses on "the reasonable suspect." If the police are aware of a *particular vulnerability* of the suspect and exploit that vulnerability, that fact is imputed to the "reasonable officer" used to assess whether the statements or conduct used by the actual police qualify as questioning. Spontaneous or volunteered statements do not implicate the Miranda rule, even if they are made by a suspect while in custody, because: they are not the product of interrogation.

Interrogation

An interrogatory is simply a question submitted in writing to any other party. Each party may submit up to 25 questions on any other party. The interrogatory can seek facts about the case ("Were you wearing your glasses at the time of the accident?") but can also seek contentions ("Do you contend that the plaintiff was contributorily negligent?").

Interrogatories (Rule 33)

(a) A party served with interrogatories has 30 days to respond. (b) The response must be in writing, and if the recipient has any objections to the questions (e.g., the questions seek irrelevant or privileged information), the objections must be stated with specificity. (c) If particular questions can be answered by reviewing documents, and the burden of reviewing those documents will be roughly equal for the requesting party, the answering party can simply provide the requesting party access to those documents.

Interrogatory Response

An intervening event may cut off proximate causation where it is a superseding cause. An intervening event may be created by another person, nature, or victim's own reaction to defendant's conduct. A cause is not "superseding" where it is a foreseeable response to D's conduct. Dependent Intervening Cause -- An intervening force that is a result of or response to the defendant's act is a dependent intervening cause. A dependent intervening cause will supersede the defendant's act only when it is a totally abnormal response to the defendant's act. Independent Intervening Cause -- An independent intervening cause is one that would have occurred regardless of the defendant's act. An independent intervening cause will normally supersede the defendant's act, except when the independent intervening force was foreseeable. Grossly negligent or reckless conduct that accelerates a death set in motion by D will normally be considered unforeseeable; simple negligence is foreseeable. Unknown special sensitivities or vulnerabilities of a victim are considered foreseeable.

Intervening Cause

Sometimes a non-party is interested in the result of a lawsuit but has not been joined as a co-party (through permissible or mandatory joinder) or joined as a third party defendant (through impleader). In these circumstances, the non-party may attempt to join the lawsuit through her own initiative.

Intervention (Rule 24)

Upon timely application, any person must be permitted to intervene in an action when the applicant: (a) claims an interest relating to the subject matter of the action, AND (b) is so situated that, absent the intervention there is a risk that the applicant will not be able to protect that interest

Intervention of Right

Involuntary intoxication (whether brought about by alcohol or by narcotic drugs): is a complete defense to any offense requiring mens rea Remember, voluntary intoxication is not a complete defense, but may reduce a defendant's level of culpability by negating a requisite specific intent element, like intent to steal or premeditation and deliberation.

Intoxication

This form of invasion of privacy is present when defendant unreasonably intrudes into plaintiff's seclusion. a. Does not require any publication of information. b. Invasion must be done in a way that is offensive to a reasonable person. Eavesdropping, wiretapping, stalking. Something visible in public is not a ground for intrusion. Damages recoverable for invasion of seclusion include compensatory damages (i.e. mental distress unaccompanied by physical injury) and punitive damages.

Intrusion into Seclusion

A routine search to protect the arrestee's personal items and to safeguard the police from any claims of theft. When an arrested person has been detained at a police station, he may be subjected to a search of his person, either incident to lawful arrest or as an inventory incident to his booking into jail. An inventory is considered a search for Fourth Amendment purposes and is generally upheld because it protects the arrestee's property and also protects the police from claims of not properly safeguarding the arrestee's property. Police who have "custody" of a prisoner's property during the incarceration may reasonably do whatever "they were entitled to do incident to the usual custodial arrest and incarceration.

Inventory Search

Any government activity that *intrudes upon the target's person, home (to include the curtilage), papers, or effects for the purpose of finding or gathering evidence of a crime* qualifies as a search within the meaning of the Fourth Amendment: The trespass qualifies as a Fourth Amendment search only if the police do so with an investigatory motive. "Looking" for something is not always a search. *A search is defined by where the police go look or how they get to a certain place.* Only when police engage in an "investigatory trespass" against a Fourth Amendment OR "look" into OR "enter" upon a REP, will it qualify as a search for purposes of the Fourth Amendment.

Investigatory trespass

If a suspect makes an unequivocal request for an attorney or to remain silent, the interrogation must cease. These requests can be made at any point during the interrogation. The effect of invocation on police ability to "re-initiate" questioning by approaching the suspect and requesting a new Miranda waiver will turn on the Miranda right the suspect invoked Invoking the right to silence if a suspect invokes the right to silence by cutting off questioning police must scrupulously honor the invocation, and not badger the suspect. To resume questioning: 1) Police must allow for a significant time to elapse. 2) Obtain a new waiver. There is not set amount of time police must wait before re-initiating questioning with a suspect who invokes the right to silence. Factors that indicate they "scrupulously honored" the invocation include passage of a significant amount of time, different location, different officers, and different subject matter.

Invocation of Rights During Interrogations

An unintentional killing resulting without malice aforethought caused either by: (a) recklessness, (b) criminal negligence, or (c) during the commission or attempted commission of an unlawful act (misdemeanor-manslaughter). Includes misdemeanor-manslaughter. Examples: -- mishandling of loaded weapons -- dangerous operation of a motor vehicle, including driving while intoxicated, -- shaking a baby so violently that it causes death.

Involuntary Manslaughter

In practice, an issue is essential to the judgment if it is a merits issue that if decided the opposite way, would change the result of the case.

Issue Preclusion / Collateral Estoppel The issue was essential to the judgment of the prior action

It is not enough that an issue was implicitly decided, stipulated to be true by the parties. The issue must be subject to the judicial resolution, whether by the judge or jury.

Issue Preclusion / Collateral Estoppel The issue was litigated and determined in a prior action

In practice, this often means that the party defending itself from an issue preclusion argument was a party to the first suit (though the party might still avoid issue preclusion if it lacked an incentive to litigate the issue). If the defendant could not have reasonably known other plaintiffs would be waiting in the wings to piggy back on the first plaintiff's successful verdict, the court will find that the defendant did not have an incentive to vigorously defend itself and thus refuse to apply the rules of issue preclusion here.

Issue Preclusion / Collateral Estoppel The party against whom preclusion is asserted must have had a full and fair opportunity, as well as incentive, to litigate the issue in the first suit.

A "final judgment" is a court order that resolves the entire case in favor of either the plaintiff or the defendant. A final judgment is valid only if the court had personal jurisdiction over the defendant. A final judgment is "on the merits" if it involved an inquiry into the merits of the plaintiff's claim and did not result in: (i) dismissal for lack of personal jurisdiction, (ii) dismissal for lack of subject matter jurisdiction, (iii) dismissal for lack of venue. A dismissal with prejudice is considered a dismissal on the merits.

Issue Preclusion / Collateral Estoppel The prior suit ended in a valid final judgment on the merits

Evidence of offering to pay medical (hospital or similar) bills is: inadmissible to prove liability for an injury NOTE: NO NEED for a dispute with offers to pay medical expenses like with offers to settle.

Legal Relevancy (FRE 407-411): Otherwise relevant evidence that is barred due to public policy. Payment of Medical and Similar Expenses

Above, we considered juries and the types of verdicts they deliver. A general verdict is simply a verdict that says "P wins" or "D wins." In contrast, a special verdict says that "P was contributory negligent" or "D failed to warn the occupants of his store of a known risk." Special verdicts are very helpful to parties asserting issue preclusion because they explicitly define the issue, how it was decided, and (often) its essentiality to the judgment. Issue preclusion can be used without special verdicts, but it is often easier to make the argument when the first case relied on them. Courts are a bit more skeptical of this type of preclusion than the defensive version; they look particularly closely at the defendant's incentive to litigate the issues in the first suit. If the defendant could not have reasonably known other plaintiffs would be waiting in the wings to piggy back on the first plaintiff's successful verdict, the court will find that the defendant did not have an incentive to vigorously defend itself and thus refuse to apply the rules of issue preclusion here.

Issue Preclusion / Collateral Estoppel Special verdicts

either pretrial, during trial, or even on appeal. Opposing party DOES NOT need notice, but can dispute the taking of judicial notice.

Issues of judicial notice may be raised for the first time:

Two crimes occurring out of the same transaction are considered the same offense, unless: a. Each charge requires proof of: a separate criminal impulse for example a separate victim in one transactions b. Each charge requires proof of: a separate factual element If it's the same mental state for both offenses, it's the same offense; if the only difference is the mental element, it's the same offense.

Jeopardy - Same Offense

This is multiple claims brought by a single claimant and single defendant (Rule 18) If a plaintiff has numerous claims against a single defendant, she is free to bring all of those claims in the same lawsuit regardless of whether they are related to each other. The law of joinder does not require a plaintiff to bring every claim she has against a particular defendant; it simply permits her to do so. Nonetheless, if the plaintiff refuses to bring a claim that is related to the other claims in her suit, the law of preclusion will often bar litigation of the claim the plaintiff omitted.

Joinder of Claims

Plaintiffs may be forced to add a party to a lawsuit. To determine whether a missing person is important to a suit and whether to litigate the suit in that person's absence, federal courts work through the following three steps. Step 1: Determine whether the absent party is "necessary." Step 2: If the missing party is necessary, determine whether she can be joined. Step 3: If the necessary party cannot be joined, determine whether the necessary party is "indispensable."

Joinder of Parties Mandatory Joinder (Rule 19)

Under the federal rules, multiple plaintiffs can join together in a single action, or multiple defendants can be sued in a single action, as long as: (a) the joined parties claim relief (if plaintiffs) or face liability (if defendants) that arises out of the same transaction or occurrence, and, (b) there will arise in the action questions of fact or law that are common to the joined parties

Joinder of Parties Permissive Joinder (Rule 20)

A form of concurrent ownership, where each co-tenant owns an undivided interest in the whole of the property and has a right of survivorship.

Joint tenancy

Judicial notice occurs where the court accepts a fact as true although no supporting evidence for it was presented. Two kinds: 1. Commonly known facts, which are not subject to reasonable dispute; generally known within the jurisdiction of the court 2. Facts which are capable of accurate and ready determination by resort to sources of unquestionable accuracy.

Judicial Notice Types

a. These include accuracy of radar; blood tests; historical records; prevailing interest/mortgage rates; mortality rates; Father's Day 1984 was June 19th. b. A court WILL NOT take judicial notice of: the USSC is very conservative; second-hand smoke causes lung cancer.

Judicial notice: facts which are capable of accurate and ready determination by resort to sources of unquestionable accuracy.

Congress may neither enlarge nor restrict the Supreme Court's original jurisdiction. Congress cannot take a case from appellate jurisdiction and move it to original jurisdiction (Marbury v. Madison) Congress cannot remove the appellate jurisdiction of the U.S. Supreme Court in a way that thwarts the essential constitutional role of the Court. Congress has plenary power to prescribe the jurisdiction of the lower federal courts, not the Supreme Court. Article III grants Congress the authority to establish lower federal courts and to prescribe their jurisdiction.

Jurisdiction of the Supreme Court Congress' Power Over the Courts

During voir dire, any party may ask the court to dismiss a potential juror because the juror is unfit to serve. The most common ground for unfitness is the juror's confessed or likely bias towards a party or issue in the case. Each party has an unlimited number of challenges for cause, but must articulate the nature of the juror's unfitness in each instance.

Jury Composition Selection Challenges for Cause

In addition to challenges for cause, jurors can also be removed through a peremptory challenge. (a) Each party has three such challenges and when exercised, the juror is automatically dismissed. (b) In making a peremptory challenge, a party need not articulate its reason for dismissal unless the strikes give rise to an inference of racial or gender discrimination. 1) If that is the case, the striking party must provide a nondiscriminatory explanation for the strikes or else rescind its strike of each juror involved.

Jury Composition Selection Peremptory Challenge

Before deliberating, the judge instructs the jury on the law applicable to the claims alleged. Any party may propose particular instructions no later than the close of all evidence. Any party may also object to any instruction, but most do so before the jury begins its deliberations

Jury Instructions

The right to a jury trial attaches in any criminal proceeding where the defendant faces a potential sentence of more than 6 months confinement on at least one count. Note that unlike the right to counsel, the right to a jury is triggered by the potential result.

Jury Trial

(1) Police must normally "knock and announce" their identity before entering a home to execute a warrant. (2) Knock and announce is not required if police have *reasonable suspicion* to believe that doing so will endanger officers or lead to the destruction of evidence or flight of the suspect. (3) The violation of the "knock and announce" rule: violates the Fourth Amendment but does not trigger the exclusionary rule.

Knock and Announce Rule

Defendant engages in conduct that he knows, with almost absolute certainty, will produce a prohibited result.

Knowledge

Rational Basis --- Age --- Alienage --- Disability --- Sexual orientation --- Wealth --- All else Intermediate --- Gender --- Illegitimacy --- Undocumented alien children Strict Scrutiny --- Alienage (state) --- Domestic travel --- National origin --- Race --- Voting

LIST -- Equal Protection Challenges

There are three kinds of security deposits: 1) a true security deposit, that is returned to tenant at end of lease, minus funds used to repair damage done by tenant; 2) a deposit to be forfeited in the event of default; and 3) a deposit denominated as advance rent for the last period of the lease.

LL/Tenant - Security Deposits

At common law: anything that was affixed to the land became part of the land and it had to stay Trade fixtures: any item used in the course of the tenant's trade or business Could be removed unless removal would cause substantial damage to the property Most courts today have done away with the distinction between regular fixtures and trade fixtures and treat them all the same. Can the fixture be removed and the premises left in substantially the same condition as when the tenant arrived? (a) If so: the tenant is entitled to remove the fixture before leaving the premises If something is removable, it must be removed before the expiration of the lease EXCEPTION: Some jurisdictions will give tenants a reasonable amount of time after the expiration of the lease, if tenant has no way of knowing when tenancy will terminate. Tenancy at will. Life tenant: Owns land for duration of life, don't know when that tenancy ends, estate given reasonable time to remove.

LL/Tenant - Who has right to improvements (fixtures)?

An invitee is a person who enters onto defendant's land at defendant's express or implied invitation, and who enters to confer an economic benefit of the defedant or activities or the land are held open to the public at large. Defendant has a duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land. Only for an invitee does a land owner have a duty to search out dangers on the property.

Land Possessor Liability Invitees

Landlords are not liable unless: (a) Common area over which landlord retains control. (b) Negligent repairs (c) Known hidden dangerous defect on the property (d) Landlord knows that the tenant is going to hold the property open to the public at large

Land Possessor Liability Landlords and Tenants

If the conditions apply, even though there is a trespassing child, the child will be treated like an invitee. Five factors: 1) Are children too young to appreciate the danger? 2) Is it foreseeable that there would be trespassing children? 3) Does the defendant know of the dangerous condition on the property? 4) Only applies to artificial conditions 5) Is the risk so great that it outweighs the utility and the burden that would be placed on the defendant?

Land Possessor Liability Plaintiffs on the land Child Trespassers (Attractive Nuisance Doctrine)

A licensee is a person who enters onto defendant's land with defendant's express or implied permission, and who does not enter for a purpose benefiting defendant or defendant's activities. Land possessors must warn licensees of known, concealed dangers that are not obvious. Defendant's activity = There is a duty of reasonable care owed to any land entrant injured by the defendant's activity unless it is an unknown trespasser.

Land Possessor Liability Plaintiffs on the land Licensees

A trespasser enters onto defendant's land without defendant's permission or without a privilege. Land possessor must avoid affliction of willful and wanton harm. If there are known or frequent trespassers, the land possessor must warn of known artificial conditions of the land.

Land Possessor Liability Plaintiffs on the land Trespassers

Plaintiff's status can be debatable and can change. Minority approach: Applies standard of reasonable care to all land entrants.

Land Possessor Liability note Status / Duty

Whoever is the landlord of record on the date rent is due is entitled to that rent.

Landlord's Transfer of Interest - who gets rent?

a. A lease can be oral or in writing. A writing is required for a lease term longer than one year. b. An implied lease may occur through conduct of the parties, e.g., where the written lease is never signed, but the tenant pays periodically, creating a periodic tenancy.

Landlord-Tenant - Creation

a. Term of Years b. Periodic Tenancy c. Tenancy At-Will d. Tenancy at Sufferance (Holdover Tenant)

Landlord-Tenant - Types of Leases

"There are no warranties which extend beyond the description on the face hereof." However, the above language is not necessary to exclude or modify the warranty if: (1) The contract includes an expression like "as is" or "with all faults" or other similar language that in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; (2) the buyer has fully examined the goods before entering into the contract, or has refused to do so, in which case there is no implied warranty as to defects that should have been apparent from the examination; or (3) course of dealing, course of performance, or usage of trade indicate that the warranty is excluded or modified.

Language to exclude all implied warranties of fitness is sufficient if it states, for example,

(1) Common Law Rule: If a beneficiary predeceases a decedent, any gift to the beneficiary fails (2) Many states now have anti-lapse statutes so that the beneficiary's heirs can "stand in his shoes" and accept the inheritance. (3) A will may also contain alternate instructions in the event that a beneficiary is not alive at the time of the testator's death.

Lapse

Common Law: trespassory taking and carrying away ("asportation") of the tangible personal property of another with the intent to permanently deprive (steal) the owner thereof. Modern law - Unlawful taking and carrying away of property of another with the intent to permanently deprive. Larceny requires that the specific intent to permanently deprive accompany the trespassory taking.

Larceny

Abandoned property cannot be the subject of larceny, although lost or mislaid property can. In order to be guilty of larceny for lost or mislaid property, there are two requirements: (1) must intend to permanently deprive the owner of it; and (2) must either know who the owner is or have reason to believe (from earmarkings on the property or from circumstances of the finding) that he can find out the owner's identity.

Larceny Abandoned Property

Abandoning stolen property with the hope that it will be returned to the rightful owner constitutes larceny. If a defendant pawns the property, he can negate the intent element if he intended to later redeem it. If the defendant intends to replace or pay for the property at a later time, this can negate the intent to permanently deprive element.

Larceny Abandoning/selling stolen property

Under the doctrine of continuing trespass, a trespassory taking "continues" for the duration of the possession. Therefore, if defendant takes property unlawfully intending at the time of the taking only to use it temporarily, but later decides to permanently deprive the owner of the property, this doctrine establishes concurrence between the unlawful taking and the requisite intent to steal.

Larceny Intent to Permanently Deprive Continuing trespass

In order to prevail in a legal malpractice action, plaintiff must show that if not for the malpractice, they would have prevailed in the underlying action.

Legal Malpractice

Return property does not conclusively establish the absence of the intent to steal. If, at the time of taking, the defendant intends to return the property to the victim unconditionally and within a reasonable time, there is no intent to permanently deprive. Defendant must have the ability to return the property, even if something unanticipated stops the actual return of the property However, so long as the defendant intended to permanently deprive at the time of the taking or any time prior to the return, he is still guilty of larceny. Giving the property back does not erase a prior intent to steal.

Larceny Returning stolen property

The carrying away (asportation) is complete upon even the slightest movement. The taking and carrying away must concur in time with the intent to permanently deprive (animus furandi).

Larceny Carrying Away

At common law, larceny was limited to tangible personal property. Modern statutes have expanded the kinds of property to include theft of services and other intangibles (such as gas/electrical power and written instruments that represent property rights).

Larceny Property

Defendant tricks the possessor into giving him possession (not title) through a fraudulent misrepresentation. Larceny by trick is: a form of larceny because the fradulent misrepresentation nullfies the consent and therefore the taking is technically trespassory 2. Because title does not pass until a check clears: tricking the owner to deliver property by a false check is larceny by trick - because you don't have legal ownership of property until check clears a. Most jurisdictions also have a specific crime of making or uttering a false check to address this misconduct. If victim doesn't rely on the misrepresentation in giving possession, there's no larceny by trick - could have an argument for theft by false pretenses.

Larceny by Trick

Applies in contributory negligence jurisdictions. Under this doctrine, a negligent plaintiff can nonetheless recover if he is able to show that the defendant had the last opportunity to avoid the accident. This is rarely the correct answer.

Last Clear Chance Doctrine

Law-based federal jurisdiction arises under, 1) cases arising under the Constitution or federal law; 2) cases of admiralty and maritime jurisdiction

Law-Based Federal Jurisdiction

(1) Direct examination: leading questions are generally not allowed on direct Circumstances in which leading questions MAY BE appropriate on direct examination include: (a) hostile witness; (b) adverse witness; (c) child witness; (d) preliminary background information; (e) to refresh recollection. (3) Where the examiner and the witness are on the same side: leading questions not allowed

Leading Questions: Rule 611(c)

*Avoidance*: Contracts made under physical compulsion are void, and all other contracts are voidable *Restitution*: The aggrieved party is also entitled to restitution of any benefits conferred on the other party so long as he likewise returns any benefits received. The common law defense of duress can be used in cases arising under the UCC as a supplementary provision.

Legal Consequences for Duress

The contract is voidable at the option of the aggrieved party The aggrieved party is entitled to restitution of any benefits conferred on the other party so long as he likewise returns any benefits received. Like the other defenses, the claim of common law undue influence is available in cases arising under the UCC as a supplementary provision.

Legal Consequences of Undue Influence

Upon a finding of unconscionability, the court may: (1) refuse to enforce the contract; (2) excise the offending clause and enforce the remainder of the contract; or (3) limit the application of the offending clause so as to avoid any unconscionable result.

Legal Consequences of a Finding of Unconscionability

The legal consequences of a successful mental incompetence defense depend on whether or not the party exercising this defense has been adjudicated mentally incompetent or not. (a) *If there's been an adjudication of mental incompetence: contracts are altogether VOID.* (b) *If there's been no such adjudication: the contract is voidable at the option of the incompetent party.* *Possibility of Ratification* A party who is mentally incompetent at the time of contract may expressly or impliedly ratify it if he becomes competent at a later time. EXCEPTION: If the other party takes unfair advantage of the mentally incompetent person, being aware of that person's incompetence, then the other party is entitled only to a return of any benefits still in the possession of the mentally incompetent party. The other party will have no right of recovery for services or benefits already consumed.

Legal Consequences of the Mental Incompetence Defense

Evidence of an offer to settle a claim, which is DISPUTED either as to validity or amount, is INADMISSIBLE to prove liability. Public policy: to encourage out-of-court settlement in civil cases Evidence of an offer to compromise MAY NOT be used as a prior inconsistent statement for impeachment purposes . Exceptions: (a) Admissible to: show bias or prejudice (b) To negate: a contention of undue delay (c) Settlement amount is undisputed between parties Key point (a) There must be a DISPUTE as to amount or fault (liability). Either presented as words, a suit, or blurt out

Legal Relevancy (FRE 407-411): Otherwise relevant evidence that is barred due to public policy. Compromise and Offers to Settle Exceptions

Evidence of SRM is INADMISSIBLE to prove: negligence, culpable conduct, design defect, or the need for a warning SRMs can be used to show: Ownership or control; to impeach; feasibility of precautions if controverted Public policy: to encourage persons to fix dangerous conditions and make products safe Timing: Measures taken must be subsequent to accident

Legal Relevancy (FRE 407-411): Otherwise relevant evidence that is barred due to public policy. Subsequent Remedial Measures

You cannot be guilty of attempting to do something that is not a crime just because you believed it was a crime. There's no crime to commit (1) Legal impossibility is a defense to attempt and involves the situation where the defendant thought he was committing a crime, but his acts did not constitute a crime. EXAMPLE: A visitor from Germany goes to McDonalds on her first day in the U.S. In Germany, customers must pay for "McKetchup". Believing the same is true in the U.S., the visitor sees Ketchup sitting out on a counter and decides to take some without paying for it. Even though the visitor believes she is stealing ketchup, she cannot be convicted of attempted larceny because it is not a crime to take ketchup in a U.S. McDonalds.

Legal impossibility (of attempt)

(1) Evidence that a person: was or was not insured is inadmissible to prove negligence or fault (i.e., that defendant acted wrongfully) (2) Exceptions: Evidence of insurance against liability may be admitted for another purpose, such as: Proof of agency; ownership or control; bias or prejudice of a witness (3) Note: (a) The limits of insurance coverage are NEVER admissible. (b) Pretrial discovery of insurance coverage is usually allowed.

Liability Insurance (Rule 411)

Cannot limit liability for intentional or recklessness tortious conduct as violative of public policy. Can limit liability for negligent tortious conduct

Liability Limitation Provisions

Historically, libel was a written form of defamation. Today, a defamatory message embodied in any relatively permanent form is a libel. Examples include a sound recording, video recording, picture, sculpture, etc. Reputational harm is presumed and damages do not have to be proved.

Libel

A license is a privilege to go on land, but is deemed to be a personal right rather than a interest in the land. (Going to the movie theater) Freely revocable at any time, for any reason unless something happens that makes it irrevocable. Licenses are not transferable, unless the licensor so intends. Licenses terminate on the death of the licensor or the conveyance of the servient estate.

Licenses What is it Revocability Transferrability Termination

A life estate lasts for the duration of the grantee's life (person receiving the property). EXAMPLE: "A to B for life." Life estates can be made defeasible. EXAMPLE: "A to B for life, as long as B farms the land." Once B stops farming the land, the estate goes back to the grantor. Once B dies, the estate goes back to the grantor.

Life Estate

a. Noncompete Agreements b. Sales of Goods via Bribery c. Sales of Goods intended for Unlawful Use d. Liability Limitation Provisions e. Unlicensed Goods or Services

Likely Contexts for Public Policy Defenses

(1) A Miranda violation does not result in the exclusion of other evidence derived from the inadmissible statement, because a Miranda violation does not trigger the fruit of the poisonous tree doctrine. (2) Public Safety. When the primary purpose of the police questioning is to protect police or the public from an Imminent danger of serious harm: statements are admissible even without a Miranda waiver. (3) Statements obtained from the defendant in violation of Miranda rights are admissible: to impeach.

Limitations of and Exceptions to the Miranda Rule

Offers are only effective to create power of acceptance upon RECEIPT - dispatch of offers is not legally relevant. Someone has to get the offer, and respond again.

Mailbox rule -- In a situation where the offeror and offeree simultaneously dispatch identical offers:

The aggrieved party may not be able to recover the full amount of expectation damages in the following situations: 1) Situation #1: *where the cost of performance greatly exceeds the market value of the performance* 2) Situation #2: *where expectation damages cannot be calculated with reasonable certainty* 3) Situation #3: *where damages are unforeseeable* 4) Situation #4: *where damages can be mitigated*

Limitations on the Right to Recover Expectation Damages

The only effect of a successful Statute of Frauds defense is to defeat enforcement of the contract against the non-signing party. The contract may still be valid and enforceable for other purposes. a. The oral contract may provide evidence in establishing an element of a legal claim apart from breach of contract. b. The oral contract may provide evidence establishing a defense to a legal claim apart from breach of contract. c. The oral contract may provide evidence of the value of the services already rendered.

Limitations on the Statute of Frauds What else can we use the contract as evidence of?

If evidence is admitted as to one party or for one purpose but inadmissible as to another party or for another purpose, the court shall restrict the evidence to its proper scope and instruct the jury accordingly. Counsel must request a limiting instruction. An accused may decide to testify on a preliminary matter without waiving his Fifth Amendment privilege against self-incrimination as to other subsequent issues. Cross-examination is then limited to the scope of the preliminary issues.

Limited Admissibility (Rule 105) 5th Amendment right against self-incrimination and testimony on preliminary facts

Parties are free to include among the terms of their contract a liquidated damages clause, *designed to provide for damages at their own choosing in the event of a breach*. Such a provision is: *enforceable if: the court finds it to be a valid liquidated damages clause designed to compensate for breach.* *unenforceable if: the court finds it constitutes a penalty designed to punish a breach.* When the court concludes that the liquidated damages clause is in fact a penalty, the clause is stricken from the contract, and damages will be recoverable in accordance with all the default rules of remedies and damages.

Liquidated Damages Provisions

(factual relevance): probative value = some logical tendency to prove or disprove a fact of consequence

Logical relevance

A statute that allows for a state court to obtain personal jurisdiction over an out-of-state defendant on the basis of certain acts committed by an out-of-state defendant, provided that the defendant has a sufficient connection with the state. Examples qualifying as a substantial connection could include the out-of-state defendant conducting business transactions in the state, or an out-of-state defendant injuring a plaintiff who is a state resident.

Long arm statutes

a. Where a spouse is injured, the surviving spouse may bring a claim for loss of consortium for the intangible injuries of loss of comfort, companionship, and access to sexual relations.

Loss of Consortium:

A lost volume seller is someone who can produce as much of certain goods as they can sell. The UCC accordingly permits lost volume sellers to recover the profit they would have made on the lost sale. To recover lost profits, the seller must be able to show: i) that he *could have made the sale to both the breaching buyer and resale buyer;* ii) that it *would have been profitable to make both sales;* and iii) that he *probably would have made the additional sale even absent the buyer's breach.*

Lost Volume Sellers under UCC

The defendant has a right to a jury selected from a fair cross-section of the community, considering the ethnic and demographic makeup of the community. If the defendant can show that a distinct group was systematically excluded from the jury pool, he is entitled to a new trial. This is the POOL of jurors to be selected from, not the ACTUAL jury. However, the use of peremptory challenges to exclude jurors from the actual jury based on race or gender violates Equal Protection. If a party is accused of this, they must provide a "race or gender neutral" basis for the challenge. If that basis is unpersuasive, the challenge will be denied.

Makeup of the Jury

Malice is established by proof of: (1) intent to kill or knowledge of killing; (express) (2) intent to inflict grievous bodily harm; (express) (3) or an unintended killing resulting from extreme risk creation that manifests a wanton disregard for human life. (implied) Dangerous Weapon Doctrine ---- Intent to kill is normally inferred from D's use of an instrument designed to kill or used in a manner likely to kill or inflict grievous bodily harm.

Malice

Intent to kill is normally inferred from D's use of an instrument designed to kill or used in a manner likely to kill or inflict grievous bodily harm.

Malice - Deadly weapons doctrine

= express malice, even if the defendant did not intent to kill. Serious bodily injury means significant but non-fatal injury. May be inferred from: (a) defendant's conduct or (b) use of a weapon.

Malice - Intent to cause serious bodily harm

(1) Arson (2) Common law murder

Malicious Crimes

An act that is inherently wrong or "evil" - an act that involves a general criminal intent or moral turpitude.

Malum In Se

Most discovery operates through specific requests made by a party. When a proper request is made, the party receiving the request has the obligation to provide the information sought. In some instances, however, a party must provide information to the opposing party even when a request has not been made. There are three types of these mandatory disclosures: initial, expert, and pretrial.

Mandatory Disclosures (a.k.a. What You Will Get Without Asking) (Rule 26(a))

A party is "necessary" --- (1) if the party has an interest that might be impaired if the party is left out of the litigation, (2) if complete relief cannot be issued in the party's absence, or (3) if the current parties would be subject to duplicative or inconsistent liability. Joint tortfeasors are not necessary parties.

Mandatory Joinder (Rule 19) Step 1: Determine whether the absent party is "necessary."

There are two reasons why a missing party cannot be joined in federal court: (a) the court lacks personal jurisdiction over the missing party; and, (b) adding the party would destroy jurisdiction based on diversity of citizenship If the missing party can be joined, the court should join the party and simply adjudicate the case (thus skipping Step 3). If the missing party cannot be joined, the court should proceed to Step 3.

Mandatory Joinder (Rule 19) Step 2: If the missing party is necessary, determine whether she can be joined.

a) A product manufactured in a form other than the manufacturer intended contains a manufacturing flaw. b) Plaintiff must show that: Product is more dangerous than a consumer would reasonably expect when using the product in its intended manner or it is in a condition not intended by the manufacturer and the defect existed at the time it left the defendant's hands.

Manufacturing Defect

The privilege can be asserted by either spouse, both are holders. It applies in both civil and criminal cases. It only protects particular kinds of communications. 1) Protects confidential communications: (i.e., those intended by the parties to be confidential) between the spouses ONLY during marriage a) Majority position: Observations are not protected. (E.g., witness observes husband injecting himself with heroin.) 2) Divorce has NO EFFECT: communications remain protected and survive death of a spouse 3) Communications in the presence of older children, friends and relatives are NOT privileged.

Marital Communications Privilege

1) Crimes or intentional torts committed by: 1 spouse v. the other or v. the children 2) Divorce proceedings: (any suits between the spouses) - adverse civil proceedings 3) Joint participant in a crime: i.e. husband charged with tax fraud; wife assisted him; wife may be compelled to testify as to confidential communications/conversations between them

Marital Communications Privilege EXCEPTIONS

Every land sale contract unless expressly stated otherwise contains an implied covenant of marketable title. Marketable title does not mean perfect title. It means title that is reasonably free from defects in both fact and law. A majority of jurisdictions allow a seller to use the proceeds of the sale to remove a cloud on title and make it marketable

Marketability of Title

The covenant only manifests itself at the time of the closing of the deal. Up until the passing of the deed, you have to pass marketable title.

Marketability of Title - time of manifestation

A marketable title act provides a "cut-off" point, which limits the time period during which a subsequent purchaser is required to search the records. The cut-off point is fixed by identifying a deed that has been of record for the required period, which is usually 30 or 40 years. Any interest that is not recorded or refiled within the required period is extinguished.

Marketable Title Act

From Second Restatement Use in minority of jurisdictions A promise made in recognition of a past benefit conferred will be enforceable as long as: 1. The promisee conferred the benefit on the promisor and not on a third party, and, 2. The benefit is material (i.e. grave, serious, life or death) *EXCEPTION* - A promise made based on past benefits will not be enforceable if the benefits were previously contracted for by the promisor

Material Benefit Test

The misrepresentation is a big deal. Objective Materiality and Subjective Materiality Objective materiality explained - where *the assertion is likely to induce a reasonable person to enter into the contract.* b) Subjective materiality explained: where the party making the assertion *had reason to know it was likely to induce the particular party to enter into the contract* EXAMPLE: An assertion that the car was owned by Salman Rushdie when he was living incognito in the U.S. would be material if made to an individual whom the seller knew to be a Rushdie enthusiast.

Materiality of the Misrepresentation

Common law - defendant intended to maim or do bodily injury; victim was either dismembered or disabled in a way that impaired their ability to fight Modern law - now victim can be permanently disfigured as well Mayhem is a felony If not mayhem, usually aggravated battery

Mayhem

The UCC defines a merchant in terms of his special knowledge or skill with respect to the practices or goods involved in a transaction. It is important to note that a person may be considered a merchant even if he only has knowledge of the goods, or knowledge of the practices.

Merchant

Covenants in a contract of sale, such as marketable title, merge into the deed at closing. However, merger does not apply to collateral matters (e.g., if seller agreed to remove junk car from property prior to closing and failed to do so). Merger Doctrine - the land-sale contract is deemed to merge into the deed. Covenant of marketable title is implied in the contract, and the contract merges into the deed, so the buyer cannot assert it.

Merger on a Land Sale Contract

(1) First ask whether there was a search or seizure, if so (2) Ask whether there was a valid warrant (a) if so, look for facts that indicate the warrant was defective and the police acted in bad faith when they relied on it; (b) If not, then consider whether an exception applies (3) Does the search or seizure fall into one of the established exceptions covered below: (a) If so, the search or seizure is reasonable; (b) If not, the search or seizure is unreasonable.

Methodology for Warrants

Applies in both civil and criminal cases; applies to all witnesses Two categories (1) Felonies: FRE 609(a)(1) (2) Crimes involving dishonesty or false statement: FRE 609(a)(2) Generally, defendant can hide prior convictions by not testifying: but such convictions are admissible at sentencing, and under 404(b)

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609)

Convictions more than 10 years old are INADMISSIBLE to impeach UNLESS: the probative value substantially outweighs the prejudicial effect Notice to the opponent is required. (E.g., a 22 year old conviction would be inadmissible, unless notice is given and the judge does a balancing analysis and finds the probative value highly unlikely.) d. Time limit—how the 10 years is measured: Impeachment with a conviction that is not more than 10 years old is based on either: (1) the date of conviction; or (2) the date of release from confinement, whichever is later (i.e., more recent).

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) 10 year rule

A conviction under appeal: is admissible, but evidence that the conviction is under appeal is also admissible

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) A conviction under appeal:

(a) Crimes involving dishonesty or false statement include both felonies and misdemeanors. (b) Admissible as a matter of right (i.e., no balancing), as long as they are: less or equal to 10 years old (c) Examples (admissible): Perjury, counterfeiting, forgery, larceny by trick, tax evasion, false pretenses, (criminal) fraud, embezzlement and all other crimes involving some element of deceit untruthfulness or falsification (d) Examples (inadmissible): assault, battery prostitution, gambling DUI, possession of drugs, criminal trespass, theft in general

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) Crimes involving dishonesty or false statement: FRE 609(a)(2)

(a) Felonies are: crimes punishable by death or imprisonment in excess of one year (b) For impeachment of a witness other than the accused: 1) A felony conviction is subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice). 2) Discretionary (c) If a conviction is used to impeach the defendant (i.e., accused), the conviction will be admitted IF: the prosecution shows the probative value outweighs the prejudicial effect

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) Felonies

are admissible to impeach.

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) Guilty pleas

If a defendant has been pardoned from a conviction, it is no longer admissible to impeach.

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) If a defendant has been pardoned from a conviction

(1) Inadmissible against the accused juvenile if he testifies. (2) For all other juvenile witnesses: discretionary

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) Juvenile adjudications:

is admissible to impeach.

Methods of Impeachment Impeachment by Evidence of Conviction of Crime (Rule 609) Suppressed evidence

Evidence of a witness's religious beliefs are inadmissible

Methods of Impeachment Religious Beliefs or Opinions (Rule 610)

(NO FRE Number): Inability to observe, communicate, or remember is always relevant, never collateral. However, it is generally not allowed as to whether witness is addicted to drugs or alcohol (unless immediately connected to witness's credibility).

Methods of Impeachment Sensory Defects

Direct revocation: offeror directly communicates to the offeree an intent to withdraw the offer Indirect revocation: happens where.... i) the offeror takes some action that is inconsistent with the intent to go through with the offer. ii) the offeree learns about such action from a reliable source.

Methods of Revoking an Offer

Upon exercising the right to disaffirm a contract, the minor is obligated to return to the other party any goods received under the contract. (a) MAJORITY RULE - the minor must return the goods if they are in his possession when he disaffirms the contract, but: he is not liable for damage, wear and tear, or any other depreciation in value of the goods. (b) A contract between a minor and another party may be for something that cannot be returned, such as a services contract or a lease. In such a case the minor is under no further obligation to compensate the other party. (c) MINORITY RULE - a minor can only disaffirm a contract by making the other party whole. In these jurisdictions, the minor would be liable for depreciation, damages, as well as compensating the other party for the services received.

Minor's Power of Avoidance (or Disaffirmance)

Miranda warnings need not be repeated because of a short (as opposed to significant) break in interrogation or because a new police officer becomes involved.

Miranda Warnings and breaks during interrogation

A crime punishable by imprisonment for less than one year or by a fine only. At common law, crimes not considered felonies were deemed misdemeanors.

Misdemeanor Crime

An unintentional killing that occurs during the commission or attempted commission of a misdemeanor or a felony which is not inherently dangerous. The misdemeanor must be malum in se (evil in and of itself) ie. misdemeanor theft, battery, etc. The misdemeanor does not need to be independent like felony murder.

Misdemeanor manslaughter:

Majority of Jurisdictions: Damages are the benefit of the bargain - difference between the value of the property he was buying if its condition was as represented and its value with defects. Minority of Jurisdictions: Damages are the out-of-pocket costs - difference between what the plaintiff paid and the value of what he received.

Misrepresentation Damages

Minors who lie about their age. MAJORITY - it's the other party's duty to investigate this, if the minor lies there's nothing they can do about it MINORITY - if a minor has misrepresented his age to the contracting party in order to obtain the goods or services of the contract, he may be equitably estopped from proving his age in court, and thus prevented from using the infancy defense

Misrepresentation by Minor

Under the UCC, an agreement modifying an existing contract for the sale of goods needs no consideration to be binding, so long as the modification is made in good faith. However, even when the modification is supported by consideration, a bargained-for modification is unenforceable if the appearance of the mutual bargain is merely a pretext to hide a bad-faith change of terms.

Modification and the Sales of Goods under the UCC

A party aggrieved by a breach of contract may be able to recover damages calculated to protect that party's *expectation interest, reliance interest, or restitutionary interest.* A party may *elect only one of these remedies*.

Monetary Damages at Common Law

Most of the rules governing remedies under the UCC reflect the same underlying principles that apply in common cases—in particular, the right of an aggrieved party to expectation damages and the duty of an aggrieved party to mitigate—but they differ in their details because they are specifically designed for application to the sales of goods context.

Monetary Damages under the UCC

If the buyer buys replacement goods, damages are the difference between the contract price and the cover price. If the buyer does not buy replacement goods, the damages are *the difference between the contract price and the market price. Incidental and consequential damages = costs associated with finding replacement goods and foreseeable costs that are peculiar to the buyer because of their particular need for the goods These damages will be reduced by expenses avoided because of the breach. If the buyer receives and accepts nonconforming goods from the seller, the buyer is entitled to recover the difference between: 1) The value of the goods contracted for, and, 2) The value of the goods received.

Monetary Damages under the UCC - Buyer's Remedies

The seller's right to recover depends on whether the goods have been delivered and accepted by the buyer. When goods have been delivered to and accepted by the buyer, then the seller's remedy is for the contract price. When goods have not been delivered to and accepted by the buyer (because buyer has wrongfully rejected them or repudiated), the seller can recover damages and the measure depends on whether the seller has re-sold the goods to a third party. If the seller has re-sold, the damages are the difference between the contract price and the re-sell price. If the seller has not re-sold, the damages are the difference between the contract price and the market price. Incidental Damages are available whether or not the seller resells.

Monetary Damages under the UCC - Seller's Remedies

Where two assignees claim the right to collect from the obligor, the majority rule is that the first assignee wins. Under the Restatement, however, if the second assignee has paid value and took the assignment in good faith, the second assignee will prevail if she has also obtained: (a) payment from the obligor, (b) recovered a judgment on the debt, (c) entered into a new contract with the obligor, or (d) received delivery of a tangible token or writing from the assigner that must be surrendered under the obligor's contract.

More than one assignee

A mortgage is the most common of land security devices. Mortgage is an interest in real property that is designed to secure performance of an obligation. The obligation is usually repayment of debt. Must be in writing to satisfy the Statute of Frauds (b/c it's a transfer of land)

Mortgages

Debtor Person borrowing money Issuing a mortgage to the lender

Mortgagor

a. A civil jury MUST accept a judicially noticed fact as conclusive b. A criminal jury MAY, but is not required to, accept a judicially noticed fact as conclusive

Most highly tested area: FRE 201(f) regarding the effect of a jury instruction on judicial notice.

A motion for relief from judgment asks the court to undo the judgment entered. Such a motion need not specify the appropriate steps the court should take after the judgment has been undone; it need only ask for the court to set aside the judgment.

Motion for Relief From Judgment (Rule 60(b))

During a jury trial, the court may enter (on its own accord or upon the motion of a party) a "judgment as a matter of law" (JML) on a particular claim. A JML is appropriate if: a. the party against whom the judgment is entered has been fully heard on an issue, and b. the party lacks sufficient evidence to prevail on an issue necessary to a particular claim or defense. This standard is, in essence, the same as the summary judgment standard. A court will thus assume the non-movant's witnesses are all credible and not weigh the evidence

Motion for Judgment as a Matter of Law (Rule 50(a))

A motion for relief from judgment asks the court to undo the judgment entered. A motion for relief from judgment may be granted for any of six reasons: (a) Mistake, Inadvertence, or Excusable Neglect (b) Newly Discovered Evidence (c) Fraud, Misrepresentation, or Misconduct by a Party (d) Judgment Is Void (e) Judgment Has Been Satisfied (f) Any Other Reason That Justifies Relief A motion under Rule 60(b) must be made within a reasonable time—and no more than a year after the entry of the judgment.

Motion for Relief From Judgment

The discovery of new evidence can be used to support either a motion for a new trial or relief from judgment. The same analysis applies (the evidence must not have been discoverable before trial, the evidence must likely change the result, and the evidence must not be for the purposes of impeachment). Whether to move for a new trial or relief from judgment will depend on the timing of the motion (see below for more information on timing).

Motion for Relief From Judgment - Grounds Newly Discovered Evidence

This is a catch-all category. There are few examples of its use, but there is wide agreement that it can't be used when one of the above five options would apply.

Motion for Relief From Judgment - Grounds Any Other Reason That Justifies Relief

If the jury returns a verdict that ignores the great weight of the evidence, a court may order a new trial. Interestingly, the court may take account of the comparative volume of and credibility of the evidence—something the court may not do in a summary judgment motion or a judgment as a matter of law.

Motion for a New Trial Grounds Against the Great Weight of the Evidence

If the judge, jurors, parties, or witnesses violate the rules of trial, a new trial may be ordered if, and only if: 1) the error or misconduct likely affected the result of the trial 2) the party objected to the error when she had the opportunity to do so Examples of errors or misconduct include: a) Wrongful exclusion of evidence at trial b) Incorrect jury instructions c) Communication between witnesses d) Ex parte communication with the judge e) Juror misconduct

Motion for a New Trial Grounds Procedural Error or Misconduct

A motion for a new trial may be granted for any of the following reasons: PEAN --- you want a new peen! (a) Procedural Error or Misconduct (b) Excessive Damages (c) Against the Great Weight of the Evidence (d) Newly Discovered Evidence

Motion for a New Trial Grounds (d)

A motion for a new trial is exactly what it sounds like: a motion seeking a repeat of the trial. The old trial is declared a nullity, and the whole process starts over.

Motion for a New Trial (Rule 59)

A motion to dismiss is a motion filed by a defending party seeking the dismissal of a claim filed against him. Motions to dismiss are usually filed by defendants, but a plaintiff can file a motion to dismiss if she is sued on a counterclaim. The same goes for third party defendants (sued on impleader claims) or co-defendants (sued on cross claims).

Motion to Dismiss

A motion to dismiss may be made on any of the following grounds. Lack of subject matter jurisdiction Improper venue Insufficient process Insufficient service of process Failure to state a claim upon which relief can be granted Failure to join an indispensable party

Motion to Dismiss - Grounds

A motion to dismiss must be filed before an answer is filed. Given that the time within which to file an answer is either 21 days (where process was served) or 60 days (where service of process was waived), a motion to dismiss must be filed within 21 or 60 days.

Motion to Dismiss - Timing

. A motion for summary judgment is a motion challenging a claim or defense on the merits. The movant is arguing that there is no genuine dispute as to any material fact and thus, he or she is entitled to judgment as a matter of law. Made within 30 days of the close of discovery. .

Motions for Summary Judgment

Summary judgment may refer to the pleadings, discovery documents, materials produced in mandatory disclosure, and affidavits. Importantly, the information offered to the court needs to be admissible at trial, even if it is not presently in a form that would be admissible.

Motions for Summary Judgment Materials used

A summary judgment movant will use holes in the opposing party's claims/defenses and new evidence to demonstrate that the non-movant's claim/defense cannot be true. The court then considers whether the movant has shown that the non-movant lacks sufficient facts and/or law to prevail on the claim or defense in question. In considering these arguments, the court will not question the credibility of the movant or the movant's witnesses.

Motions for Summary Judgment Step 1

If the court decides that the movant has shown the non-movant lacks sufficient facts and/or law to prevail on a claim/defense, the non-movant must show evidence sufficient for a reasonable jury to find in their favor on the claim/defense to survive summary judgment. The court will look only at the non-movant's evidence and not question the credibility of the movant and their witnesses. If the non-movant does not produce new evidence but merely refers to their prior pleadings ("sitting on the pleadings") the court will grant the summary judgment motion. However, if the pleadings are filed under oath, they amount to an affidavit which does have new evidentiary value.

Motions for Summary Judgment Step 2

Unless a local rule or court order says otherwise, a party may move for summary judgment anytime before 30 days after the close of discovery

Motions for Summary Judgment When may the motion be made?

Plaintiffs or defendants can move for summary judgment, but it's much easier for defendants. The plaintiff, to prevail on her own motion for summary judgment, must adduce evidence sufficient for a reasonable jury to find in her favor on every element of her claim and hope the defendant is able to respond with no evidence on any element of the claim. Defendants need only point out, with citations to the record, the gaps in the plaintiff's evidence.

Motions for Summary Judgment Who is the motion easier for?

There are three situations where a party's communication may propose a deal to two or more persons: 1. Commercial advertisements 2. Reward offers 3. Auctions

Multiple Offerees in the following situations:

If there is more than one transfer, only the original tenant and the current tenant are liable to the landlord for rent. Middle-of-the-chain assignees are not liable to the landlord, only to the original tenant.

Multiple Tenant Assignments

Under common law, the killing must result within a year and a day of the defendant's act that was the cause in fact of the death. Otherwise, the death is unforeseeable. Most states have eliminated this rule or extended time period.

Murder - Timing

Done by an inter vivos act of one of the parties. or Joint tenant mortgages his interest in the property (in minority jurisdictions) Severing a joint tenancy creates a tenancy in common.

Severance of a Joint Tenancy

Mutual mistake doctrine applies where both parties have labored under a common faulty assumption regarding present facts at the time of contracting. The contract will be voidable by the disadvantaged party where three requirements are met: 1) the mistake must relate to material facts 2) the mistake must be made by both parties 3) the disadvantaged party did not bear the risk of mistake under the parties' agreement

Mutual Mistake

a. The federal government: has limited powers. It has the powers the Constitution gave it and no others. b. The states: have police power. They can pass laws without identifying a source of power for doing so.

Nature and Scope of Federal and State Powers

Necessity is a general defense that justifies the commission of what is normally a crime when: (1) It is necessary to avoid an immediate threat of greater harm to persons or property. (2) There is no reasonable alternative to breaking the law to avoid the greater harm. (3) D is not responsible for causing the harm. At common law, necessity was never a defense to murder, unless: it is raised as a defense to the underlying felony for a felony murder prosecution. The MPC allows a defendant to raise necessity as a defense to all charges, which might result in acquittal if a defendant kills one person in order to save the lives of many others.

Necessity

Negative injunctions are orders by the court *prohibiting the breaching party from taking particular action*. The most common and important area for negative injunctions is the employment setting. The availability depends on whether the former employer is seeking mid-term or post-employment relief.

Negative Injunctions

General duty rule: When a defendant is engaged in affirmative, risk creating conduct causing personal injury or property damage, a duty is owed to a foreseeable plaintiff. Duty is a significant issue where there is: (1) Unforeseeable plaintiff (2) Nonfeasance or failure to act (3) Harm other than personal injury or property damage (4) Defendant is a land possessor, landlord, utility or governmental entity

Negligence Duty

The question of whether the defendant owes a duty to the plaintiff will depend on the function the government is fulfilling that gives rise to the cause of action. Proprietary function - treated as any other defendant Discretionary activity - no duty owed to plaintiff Ministerial function - treated as any other defendant Utility function - duty only owed to those in privity of contract

Negligence Duty When the defendant is a governmental entity

(1) Attempt (2) Solicitation (3) Conspiracy (4) Larceny (5) Larceny by trick (6) False pretenses (7) Embezzlement (8) Forgery (9) Burglary (10) Assault (11) Robbery (12) Intent-to-Kill Murder (13) Voluntary Manslaughter

Specific Intent Crimes (13)

There is no duty to control or warn the conduct of a third person as to prevent him from causing physical harm to another. Exception: 1) A special relationship exists between defendant and the third person that imposes a duty upon the defendant to control the third person's conduct; OR 2) A special relationship exists between the defendant and the victim that gives the victim a right of protection.

Negligence Nonfeasance Duty to Control or Warn Third Parties

Defendant gives something to someone whom the defendant should know is incapable of handling the object given to them. A duty is owed to any foreseeable plaintiff injured by the third party's conduct.

Negligence Nonfeasance Duty to Control or Warn Third Parties Negligent entrustment

1) Traditional rule: A social host or commercial establishment that provided alcohol to someone who then drove and injured a third party had no duty to third party. 2) Dram Shop Acts: Impose liability on establishments if they know or should know a customer is intoxicated if that person drives and harms a third party

Negligence Nonfeasance Duty to Control or Warn Third Parties Providers of alcohol

One generally does not have a duty to protect a person from third-party criminal conduct. Exceptions: Special relationship (such as a landlord/tenant, business/invitee) will trigger a duty. Some jurisdictions will only find a duty to protect where there were "prior similar incidents," making the third-party criminal conduct particularly foreseeable.

Negligence Nonfeasance Duty to Protect

Plaintiff relies on defendant's promise to rescue. This creates a legal duty to act.

Negligence Nonfeasance Duty to rescue or aid Defendant creates reliance

One has no obligation to come to the aid of another, but if they choose to do so, they must act reasonably (i.e., cannot stop rescue once you start) OR Some jurisdictions say you are only liable if you leave the plaintiff in a worse position. Good Samaritan statutes - Those who rescue others will not be liable for their negligence. Would have to be grossly negligent, reckless, or willful if they are going to be liable.

Negligence Nonfeasance Duty to rescue or aid Undertaking to act

Normally no duty to rescue or aid. EXCEPTIONS: 1) Defendant's tortious conduct creates the need for rescue 2) Undertaking to act 3) Defendant creates reliance 4) Special relationship of dependence or mutual dependence

Negligence Nonfeasance Duty to rescue or aid generally and exceptions

Nonfeasance - failure to intervene to confer a benefit on the plaintiff. This begins with the assumption that there is no duty at all. (1) Duty to rescue or aid (2) Duty to Control or Warn Third Parties (3) Duty to Protect

Negligence Nonfeasance:

There is no duty owed to unforeseeable plaintiffs. Rescuers are foreseeable plaintiffs. Rescuers are owed an independent duty. Rescuers are per se foreseeable plaintiffs, and thus are owed a duty.

Negligence Unforeseeable Plaintiffs

Even if you proport to accept an offer, if you change things up, it's a counteroffer. The Mirror Image Rule requires that acceptance mirror the terms of the offer; any variation results in a counteroffer and thus rejection of the initial offer. Corollary to the notion that "the maker is the master of the offer." EXAMPLE: X offers to buy goods from Y, Y says OK, and says he expects payment in 30 days. This will be a violation of the mirror image rule, and thus a counteroffer.

Non-Conforming Acceptance

Two types: Negligent Misrepresentation and Innocent Misrepresentation Four elements: 1: a misrepresentation 2: materiality of the misrepresentation 3: reasonable reliance on the misrepresentation 4: state of mind *The state of mind requirement for negligent misrepresentation is*: the defendant would have known that the assertion was false had he exercised reasonable care. *The state of mind requirement for innocent misrepresentation is*: the defendant made an assertion not in accord with existing facts.

Non-Fraudulent Misrepresentation

Term Estate A term estate is an estate that is limited in duration. Example: "A to B for 50 years." "A to B for 1 year." Essentially a landlord-tenant relationship.

Non-Freehold Estates

Parties often hire experts simply to assess the merits of a case and have no intention of calling the expert to testify at trial. Any information pertaining to the opinion of these experts is undiscoverable unless the party making the request has an extraordinary need and has no other way to obtain such information. This situation will arise in the rare circumstance where there are only a few experts in the world qualified to analyze a particular matter and the opposing party has already procured the opinion of those experts.

Non-Testifying Expert

The obligations imposed by Rule 11 do not apply to any discovery matter, whether it is a discovery request, response, motion, or any other matter. Misconduct in the realm of discovery is addressed by discovery-specific rules (a topic we will come to shortly).

Not Applicable to Discovery

The line between a non-custodial seizure and a seizure that is custodial is normally identified by objective indications that the seizure is not "brief", but instead the suspect is likely going to end up at the station for booking. But remember, an encounter can escalate from a non-custody seizure into a seizure that is custodial (which happens whenever the suspect is arrested). At this point, the Miranda rule comes into effect.

Not all seizures are custody, but all custody is a seizure.

The government must give two things before any deprivation: 1) Notice 2) Hearing

Procedural Due Process What process is due? What kind of procedure does the government have to follow in order to be able to deprive a person or corporation of life, liberty or property?

If a defendant is served with process, the defendant's constitutional right to notice has almost certainly been observed. The key is whether service of process was reasonably calculated to inform the defendant of the action against him. Most, if not all, service rules in the United States meet this standard, but it is conceivable that state law could permit service in a constitutionally deficient manner (e.g., "service may be accomplished by handing process to the defendant personally or by burying process in the desert on a starless night").

Notice through service

Suppose that the defendant was not served with process at all, or served in a flawed manner. Can the defendant raise a constitutional challenge to any subsequent lawsuit on these grounds? Maybe. The key for constitutional purposes is not whether process was served, but rather, whether the plaintiff took steps that were reasonably calculated to inform the defendant of the action against him. It's not whether process was served, but rather whether the plaintiff took steps that were reasonably calculated to inform the defendant of the action against him.

Notice without service

The parties put their contract in writing. Writings recite things - it recites that there's consideration for an option, but they used a form, making the recital false. i) Majority rule is: the recital is rebuttable. ii) Minority rule is: option contracts will be enforced, even if the recital consideration is false.

Nuances of Option Contracts - Signed Writing with False Recital

Injunction - To get an injunction, the plaintiff must persuade a judge that: (a) they are suffering irreparable harm; and (b) damages are an inadequate remedy A judge must do a balancing of the equities to determine whether the plaintiff is entitled to equitable relief.

Nuisance Remedies

a. The seller's obligation is to transfer and deliver the goods. b. The buyer's obligation is to accept and pay for the good.

Obligations under the UCC - In general

The *initiation of the formal adversarial process* (formal charge, indictment, arraignment, or preliminary hearing) triggers the Sixth Amendment right to the assistance of counsel *during all critical stages* of the adversarial process. In Massiah, the Supreme Court held that the *"deliberate elicitation"* of a pre-trial statement from a defendant is a "critical stage" triggering the right to assistance of counsel. Deliberate elicitation is express or implied questioning. Therefore, any statements obtained by the police from a defendant related to the crime he is formally charged with is inadmissible unless: (1) his *lawyer was present* (2) he executed a *knowing and voluntary waiver* of that assistance. Remember, just because questioning does not implicate the Sixth Amendment right, it may still implicate Miranda or the Due Process voluntariness rule. Analyze each of these protections independently.

Obtaining Statements in Violation of the Sixth Amendment Right to Counsel

Offer of proof = you're trying to show why evidence is admissible. An offer of proof for evidence is made outside the presence of the jury, typically during a motion in limine. If no objection is made the evidence will be admitted even if objectionable (except if plain error applies).

Offer of Proof

Criminal liability can be imposed on a defendant for an omission to act where: (1) There is a legal duty to act; and (2) The defendant can physical perform the act. Legal Duties: a) Statutory duties (a law enforcement officer) b) Legal duty by contract (a life guard or caregiver) c) Status relationship (husband/wife; parent/child) d) Voluntary undertaking to rescue that is abandoned e) Failing to help after creating the risk of peril

Omission to act

To prove the contents of a writing, recording, or photograph the original writing, recording, or photograph is required to reduce the risk of fraud, forgery, or mistake. Covers every tangible process to record words, pictures, and sounds. The Rule only applies where the contents of a writing are in issue - (a) Legally operative documents (b) Document-dependent testimony

Original Document Rule/Best Evidence Rule

a. Case or Controversy b. Standing c. Ripeness

Other Limitations on Jurisdiction of Federal Courts

(a) It protects all people, not just citizens. (b) It also protects corporations.

Procedural Due Process Who counts as a person who can assert rights?

Most federal question cases that come before a federal court will simply involve a federal statute or constitutional provision that has been violated. In such cases, the court's job is simple: just apply the text of the federal law as well as any authoritative precedent interpreting that text.

Ordinary Federal Question Cases

If parties' conduct establish a contract (i.e. shipment and delivery of goods) the terms of the contract will be: 1) the terms on which any writings of the parties agreed (typically the Dicker terms) 2) together with: default terms provided by the UCC Any express terms in the parties' communications which do not match or agree are omitted.

Other Situations Governed by the Battle of the Forms Rules - Contracts Formed by Conduct

Custom forms or handwritten forms 2-207 still applies to transactions even if there are no pre-printed forms.

Other Situations Governed by the Battle of the Forms Rules - Transactions without Pre-Printed Forms

An output contract is a contract in which a buyer agrees to purchase all of a seller's output for a particular good. Output contracts are not considered illusory promises and thus are enforceable. The UCC implies a covenant of good faith and precludes making unreasonable demands in an output contract.

Output Contract

Can be oral, written, or made via conduct. An offer is not about: inward thoughts or subjective intentions, which are irrelevant unless they are reasonably apparent to the other party

Outward manifestation of offer

Common law: Defendant's overt act began the last act of the crime (pulling the trigger) MPC: Defendant's act was a substantial step toward completing the crime beyond mere preparation (loading bullets) "Proximity" test - focuses on how close in time and distance the defendant was to completing the crime "Equivocality" test - defendant's conduct unequivocally shows he was going to complete the crime

Overt Act (Attempt)

Fixed-price contracts are expected to account for business risks such as Increased costs and the rise or collapse of a market. However, impracticability under the UCC has been found where: (a) War or embargo creates good shortages, (b) Local crop failure occurs, or (c) Major sources of supply shutdown due to unforeseeable circumstances (i.e. natural disaster).

Parameters of Impracticability under the UCC

A parent is normally not vicariously liable for a tort committed by her child. A few courts that have imposed vicarious liability on a parent for the tort of a child characterized the relationship as "principal-agent," akin to employer/employee, where the child was running an errand for the parent.

Parent/Child

Partial v. complete integration While the first step in the analysis is to determine the purpose for which the evidence is being introduced, the effects of these different purposes will depend upon the level of integration in the contract. i.e. partial v. complete integration

Parol Evidence Rule - Integration

When a particular contract is partially integrated, the terms contained within the contract are intended to be the final expression of those specific terms -- at least some of what they talked about is written down When a contract is completely integrated, the parties intend the contract to be a complete and exclusive statement of all the terms -- everything they talked about is written down Determining Partial Integration and Complete Integration (1) The question of whether the terms of a contract are partially integrated (i.e., final) and whether an integration is complete (i.e., exhaustive) is for the judge, not the jury, to decide. (2) In reaching decisions regarding the complete integration of a contract, the judge will rely on a merger clause (if present) and other evidence (detail of the contractual provisions; length of the agreement itself).

Parol Evidence Rule - Partial v. Complete Integration

A merger clause in a contract recites that the writing contains the complete and entire agreement of the parties, or other words to that effect. This is important evidence in showing that the parties intended their written agreement to represent an exhaustive account of their contractual obligations and commitments, and thus integration of the contract is complete.

Parol Evidence Rule - Partial v. Complete Integration *Merger Clause*

Purposes for which parol evidence may be introduced: (1) To explain or interpret the terms of the written contract, (2) To supplement the terms of the written contract, or (3) To contradict the terms of the written contract.

Parol Evidence Rule - Purpose for Which Evidence is Introduced

Parties to a contract often put a choice-of-forum clause in their contracts—a clause that specifies the forum in which any lawsuit arising from the contract must be litigated. If a defendant signs a contract with a choice-of-forum clause, she has consented to the power of the court specified in the clause.

Personal Jurisdiction Consent by Contract

Generally, parol evidence is admissible to supplement terms of a written contract, unless the contract is completely integrated. Merger Clause? If a merger clause does exist on the contract, some courts would consider the merger clause to be conclusive on the question of complete integration and thus bar the evidence. Other courts would treat it as persuasive only, evaluate the proffered evidence of the supplemental oral agreement, and admit it if they concluded that the parties did not intend the previously drafted merger clause to bar it despite their subsequent signatures on the contract. UCC Distinction for Sale of Goods Cases In a UCC case, trade usage, course of dealings, and course of performance can supplement a completely integrated agreement.

Parol Evidence Rule - Purpose for Which Evidence is Introduced Purpose #2: To Supplement Terms of a Written Contract

Generally, parol evidence is not admissible to contradict the terms of a written contract if the terms in question are partially or completely integrated. Integrated terms are terms intended by the parties to represent their final agreement on the subjects in question.

Parol Evidence Rule - Purpose for Which Evidence is Introduced Purpose #3: To Contradict Terms of a Written Contract

Typically a purchase option or a right of first refusal. Both are valid if reasonable.

Partial Restraint on selling land

1) controversies to which the United States shall be a party; 2) controversies between two or more states; 3) cases between a state and citizens of another state; 4) cases between citizens of different states and the amount in controversy is over $75,000 ("diversity of citizenship" cases); and 5) cases affecting ambassadors and consuls.

Party-Based Federal Jurisdiction (5 total)

EXAMPLE: Tenant has a month-to-month periodic tenancy where rent is due on the first of the month. At common law, notice had to be given at the start of the rental period or it would be no good. EXAMPLE: Notice would only be good if given on the first of the month. Today, notice is good whenever it is given but it does not take effect until the start of the next rental period. EXAMPLE: On the 15th of the month, T gives 1-month notice that they want to move out. Does not take effect until the first of the next month and the T must remain for that month.

Periodic Tenancy Lease Termination Timing of notice:

Anyone who owns less than a fee simple must take reasonable steps to avoid damage. Failure to do so constitutes permissive waste and results in liability.

Permissive Waste

A permissive counterclaim (see Rule 13(b)) is a claim that does not arise out of the transaction or occurrence underlying any of P's claims against D. A defendant may file a permissive counterclaim but is not required to do so. A compulsory counterclaim is a claim that does arise out of the transaction or occurrence underlying any of P's claims against D. If a defendant has a compulsory counterclaim, he must file it or else he will forfeit the claim in any future litigation.

Permissive and Compulsory Counterclaims

Personal jurisdiction, or "PJ" for short, is the power of a court over a particular party - it's about geography. PJ focuses on the state in which the suit has been filed. To determine whether a federal court has PJ over a particular party, you need to analyze two bodies of law: a. The PJ law of the state in which the federal court sits Look at State Law b. The PJ law within the United States Constitution Look at the Fourteenth Amendment

Personal Jurisdiction

If a party consents to the federal court's PJ over him, PJ is constitutional. Consent generally occurs in one of three ways: 1. Appearance 2. Contract 3. Appointment

Personal Jurisdiction Consent

In exchange for the right to do business in a state, some state laws require businesses to appoint agents located within the state to receive service of process if a legal dispute arises. If a business (or other registered organization) appoints such an agent, and the state law defines such appointment as consent; the business has consented to the PJ of the federal court.

Personal Jurisdiction Consent by Appointment

This is an extraordinary remedy by which *a breaching party is ordered to perform.* This remedy is only available to an aggrieved party when money damages are inadequate.

Specific Performance

When a party appears in court without objecting to personal jurisdiction, the party has consented to the court's power. The party must object to PJ in its initial filing before the court. This is how plaintiffs are most often subject to PJ. By asking the court to resolve a dispute, the plaintiff essentially consents to the court's PJ over her. This means that the vast majority of PJ questions will only pertain to defendants. PJ issues over plaintiffs only arise in class action situations—something we will get to later.

Personal Jurisdiction Consent thru Appearance

For jurisdiction to be constitutional under a "minimum contacts" analysis, three conditions must be satisfied: (a) the defendant has established a minimum contact with the forum state, (b) the claim against him arises from that contact, and CAUSATION REQUIRED HERE (c) jurisdiction will not offend traditional notions of fair play and substantial justice.

Personal Jurisdiction Minimum Contacts

If a party is a resident (a.k.a. domiciled) in the state where the lawsuit has been filed, PJ over the defendant is constitutional. Human beings reside in the states where they live. A corporation is a resident of the state(s) where it is incorporated as well as the state where it is headquartered. Other entities are residents of the state in which they maintain a headquarters or principal place of business.

Personal Jurisdiction Residency

If a defendant is served with process while in the state where the lawsuit has been filed, a court's exercise of PJ over the defendant is constitutional. This type of PJ is sometimes called "tag" because jurisdiction is obtained simply by "tagging" the defendant with process. CANNOT coax defendant into the state under false pretenses CANNOT serve if defendant was there to participate in a legal proceeding.

Personal Jurisdiction Service

To determine whether it may assert PJ over a party, the first question a federal court must ask is whether a state court in the same state would assert PJ over that party. A state court may be able to assert PJ because the defendant has sufficient contacts with the state, or because a long-arm statute permits. (1) If the state court would assert PJ, then the federal court may do so as well (subject to the constitutional considerations discussed below). (2) If the state court would not assert PJ, then the federal court may not assert PJ. However, in a few circumstances, Congress has authorized the federal courts to assert personal jurisdiction over a defendant without regard to state law.

Personal Jurisdiction Step 1: Look at State Law

(Step 1 was to look at state law) The federal court must also determine whether the state law is constitutional under the Due Process Clause of the Fourteenth Amendment. A state law will be constitutional if it authorizes PJ in one of five circumstances. "PJ Rarely Causes Severe Mental Strain." (a) Residency (b) Consent (c) Service (d) Minimum Contacts (e) Substantial Business Before digging into these five circumstances, keep in mind that many states authorize PJ to the full extent of the Fourteenth Amendment. If a state does that, all you need to do is determine whether PJ over a particular defendant is permissible under the Constitution. If it is, then both state law and constitutional law are satisfied.

Personal Jurisdiction Step 2: Look at the Fourteenth Amendment

The fifth and final way in which a court can constitutionally assert personal jurisdiction over a defendant is if it is doing "substantial business" in a particular state. The Supreme Court has made clear that "substantial business" is a very high bar to clear. The business must be so significant that the company, though not incorporated or headquartered in the state, is "essentially at home" there.

Personal Jurisdiction Substantial Business

A lawsuit "arises from" a defendant's contacts if the contacts played a role in causing the lawsuit. None of the other grounds for personal jurisdiction (residency, consent, service, or substantial business) have this requirement.

Personal Jurisdiction -- Claim "Arising From" Contacts

To determine whether an assertion of jurisdiction is consistent with notions of fair play and substantial justice, a court should consider -- the forum state's interest in providing redress to its own citizens, -- the plaintiff's interest in obtaining redress for her harm, -- the states' shared interests in efficiency and other important social policies, such as whether the forum is so inconvenient that the defendant cannot adequately defend himself.

Personal Jurisdiction -- Fair Play and Substantial Justice

If no objection is made during motion in limine, the evidence will be admitted even if objectionable. The only time a reversal will result from the admission of evidence despite an objection not being raised is when plain error is found. Plain error is found where an error that affects a substantial right of a party; a serious mistake that affects the verdict, i.e., prejudicial, reversible error. EXAMPLE: A jury instruction given by the trial court that fails to include an element of the crime.

Plain Error Rule

This tort is present when defendant publishes matters that portray plaintiff in a false light. Looks like defamation but there is an argument that the information should not be defamatory because it doesn't cause harm - i.e. making a false statement that someone has cancer or is poor. Plaintiff has to show: a. Publication b. Of false information c. Divulging of information is highly offensive to a reasonable person d. Some level of fault (i.e. public/private figure standards)

Portrayal in a False Light

A possibility of reverter is a future interest in the grantor that follows a determinable estate. EXAMPLE: "A to B so long as B farms the land." This creates the possibility of reverter in the grantor.

Possibility of Reverter

A power of termination is not subject to the RAP because the grantor's right is already vested.

Power of Termination (Right of Reentry) - Rule Against Perpetuities (RAP)

At strict common law a power of termination could descend through intestacy or will but could not be devised or transferred inter vivos. Inter vivos = during someone's lifetime Under modern law a power of termination is descendible and devisable but many jurisdictions still limit inter vivos transfer.

Power of Termination (Right of Reentry) - common law vs. modern trend

Upon the happening of the event the grantor must do something affirmative to retake the property - not automatic reentry. Courts favor fee simple subject to condition subsequent over fee simple determinable so there is not the automatic forfeiture.

Power of Termination (Right of Reentry) - upon the happening of the event

If the notice, stipulation, or court order specifies that the dismissal of the claim is with or without prejudice, the plaintiff is bound by that specification. If the notice or stipulation does not address the issue, the dismissal is presumed to be without prejudice for the first dismissal. Subsequent dismissals are presumed to be with prejudice.

Prejudice on Future Litigation Presumption if unaddressed

Preliminary questions of admissibility shall be determined by the court. Preliminary questions are things like: CAP a. Competency: witness qualifications—lay, expert, children b. Admissibility: whether a hearsay exception applies (Dying Declaration) c. Privilege: whether a privilege exists

Preliminary Facts (Rule 104(a))

The court will consider whether the harm to P if the injunction is denied is greater than the harm to D if the injunction is granted.

Preliminary Injunction Balance of Hardships

If P is not granted a preliminary injunction, she will likely suffer harm that cannot be undone by later relief. Courts typically find that any violation of a right counts as irreparable, even if monetary relief would be available after the fact.

Preliminary Injunction Irreparable Harm

P's legal claim is not only plausible, but if she litigates it to conclusion, she will likely win. This means that the law and facts relevant to the case are both on the plaintiff's side.

Preliminary Injunction Likelihood of Success on the Merits

A plaintiff seeking a PI must deposit enough money with the court to compensate the defendant for any losses it might suffer as a result of the preliminary injunction if the suit is ultimately unsuccessful.

Preliminary Injunction Payment of Security

Presumptions shifts the burden of production the opposing party If left unrebutted, presumption is regarded as true. A jury instruction creating a presumption as to an element of the crime charged is unconstitutional and violates due process The prosecution must prove every element of a charged crime beyond a reasonable doubt, which cannot be shifted to the defendant

Presumptions

How it works: A presumption arises where one set of facts, Basic Facts, once established by the proponent, gives rise to another set of facts, Presumed Facts, absent a contrary showing. EXAMPLE: If someone has been missing for seven years, it's presumed that they're dead. Most presumptions are REBUTTABLE.

Presumptions function as a shortcut in evidence.

The fact that an officer may have also had some improper subjective basis for the stop will not result in a finding that the stop was illegal: so long as the police action was objectively reasonable - *pretext* is OK.

Pretextual Terry Stop

a) Under the UCC Section 2-205, a merchant can make a firm offer (an irrevocable offer) to either buy or sell goods *without consideration* so long as three conditions are met: i) *Condition #1*: the offer is made by a merchant ii) *Condition #2*: the offer is made in a writing signed by the merchant - no oral firm offers iii) *Condition #3*: the offer expressly states by its terms that it will be held open b) A firm offer that meets all of these requirements becomes irrevocable for: either the time period stated, or if no time period is specified, for a reasonable time c) Under the UCC, the shelf life of a firm offer can be: no more than 3 months. d) *Three-Month Rule*: if a firm offer is more than three months, it's only irrevocable for the first 3 months. e) Offers for longer than three months: need consideration to be binding as an option contract

Preventing Revocation by Means of a "Firm" Offer under the UCC

Option contracts require: 1) An offer, 2) A subsidiary promise to keep the offer open, and, 3) Some valid mechanism for enforcing the subsidiary promise Consideration is the most common way to enforce the subsidiary promise. A minority of courts have held that revocation of an offer can be prevented where: (1) the offer is in writing and signed by the offeror, (2) recites the purported consideration for the promise to keep the offer open, and (3) proposes an exchange on fair terms within a reasonable time.

Preventing Revocation by Means of a Common Law Option Contract

Offers are freely revokable. The offeror can revoke even if he expressly promised the offeree he would hold the offer open. Under contemporary law, *there are two ways to prevent revocation of an offer*: (i) common law option contract or (ii) firm offer under the UCC.

Preventing Revocation: Option Contracts and Firm Offers

The trigger puller-the perpetrator who performs the criminal act with the requisite mental state.

Principal in the First Degree (Accomplice)

A principal in the second degree aids or abets and is present at the scene of the offense (e.g., a getaway car driver who waits outside during a bank robbery). Remember: mere presence is never enough; the defendant must share the criminal intent

Principal in the Second Degree (Accomplice)

A private nuisance is a thing or activity that substantially and unreasonably interferes with the plaintiff's use and enjoyment of her land. Mental state: Usually intentional, because once the defendant is placed on notice that their activity is interfering with the plaintiff's use and enjoyment of the land and the defendant doesn't stop because the defendant knows that their activity is interfering with the plaintiff.

Private Nuisance

(1) Value of the defendant's activity (2) Alternatives (3) Nature of the locality (4) Extent of the plaintiff's injury (5) Who was there first?

Private Nuisance There are five factors to consider when determining whether a nuisance is a substantial and unreasonable interference.

Only C.L. privileges are recognized as interpreted by the Federal Courts Absent contrary provision by the Constitution, Congress, or the U.S. Supreme Court, the law of privilege is governed by the principles of common law, subject to the superseding state law. Here's how it works under the FRE. a. In civil cases (diversity actions), the privilege of a witness is determined by state law (Erie Doctrine). a. In federal question cases and criminal cases, the privilege of a witness is determined by common law.

Privilege Generally (Rule 501) State v. Federal court

General Rule. Except as otherwise provided by the Constitution or statute or by these or other rules promulgated by the State, no person has a privilege to: (1) refuse to be a witness (2) refuse to disclose any matter (3) refuse to produce any object or writing

Privilege Under Common Law

Where privileged material is used to refresh, the court will rule that: a waiver has occurred and allow the adverse party to inspect.

Privileged material used to refresh

Every person has a privilege to refuse to disclose his vote, unless compelled by state election laws.

Privileges Political Vote

(1) A secret of state is a government secret relating to national security or international relations. (2) The privilege applies to intergovernmental opinions and policy decisions, investigatory files, and other government materials.

Privileges Secrets of State and Other Official Information

A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information unless concealment will create fraud or injustice

Privileges Trade Secrets

Testimonial privileges exist for practicality and protection of certain societal relationships. If society does not protect the sanctity of these relationships, people would be less candid with their attorneys or forego medical attention. Or, if a person were forced to testify against a spouse, the nature of that relationship changes for the worse forever.

Privileges - Policy

(1) State statutes that require non-residents to pay a higher fee for commercial licenses; (2) Commuter taxes that apply to non-residents, but not to residents; (3) State statutes that only allows state residents to get abortions within the state; or (4) A state law requiring employers to give hiring preference to state residents.

Privileges and Immunities The following have been held to be invalid forms of non-resident discrimination:

(1) State statute requiring non-residents to pay higher fees for recreational licenses than residents. (2) Discrimination against non-residents will be upheld if its purpose is the preservation of natural, state-owned resources.

Privileges and Immunities The following types of non-resident discrimination have been upheld:

The Privileges or Immunities Clause prevents states from discriminating against nonresidents with respect to "fundamental rights" or "essential activities." Sometimes referred to as the Comity Clause, this clause prohibits states from discriminating against non-residents (based upon the fact that they do not reside in the state) with respect to rights and activities that are fundamental to the national union. The test: is that the state can discriminate if it is substantially related to a substantial state interest. Corporation cannot assert these rights. A corporation is not a citizen. A corporation can protect itself from such discrimination with the Dormant Commerce Clause.

Privileges and Immunities under Article IV, Section 2 (OL VII. B.)

The Privileges and Immunities Clause of the 14th Amendment has very limited application and includes primarily the right: a. to travel across state lines and establish up residence in a new state; b. to petition Congress; c. to vote for federal offices; d. the right to assemble; and e. to enter public lands. Corporations are not protected under the 14th Amendment Privileges and Immunities Clause.

Privileges and Immunities under the 14th Amendment (OL VII. A.)

Always required to engage in a full-scale intrusion: a search to find evidence or an arrest. Probable Cause is (1) "fair probability" defined as facts and circumstances that would warrant a reasonable person to conclude (2) that the individual in question has committed a crime (for an arrest) or (3) that specific items related to criminal activity can be found at a particular location (for a search). Probable cause is an objective standard that focuses on facts and circumstances. Even if the police officer acts based on an improper motive, for example she arrests someone not because she is interested in the actual offense, but because she just wants the opportunity to search for something she has a hunch she might find, the reasonableness will be assessed objectively: so long as PC to supported the arrest, it will be considered reasonable. [Whren v. U.S., 517 U.S. 806, 813 (1996)]

Probable Cause

To establish probable cause w/ an informant tip, the totality of the circumstances must indicate that the informant's information was predictive, thus showing the informant had insider knowledge of the suspect's criminal activities. Factors considered: (a) Veracity of the Informant (track record) (b) Basis of Informant's Knowledge (c) Police Investigation Corroborates Accuracy of Predictions An informant may be reliable and anonymous (though identification supports reliability because it subjects the informant to penalty for lying). Corroboration should go beyond what any individual could easily observe from watching the defendant.

Probable Cause and Informants

The "Volley" In many cases, parties to a would-be contract negotiate in advance of reaching agreement, engaging in a communications "volley" where inquiries, proposals, and counter-proposals are exchanged. The key question to be answered: *at what point do the parties have a legally enforceable contract?*

Problem That Offer and Acceptance Law Is Designed to Address

Procedural Due Process protects persons against governmental deprivation of "life, liberty or property without the due process of the law."

Procedural Due Process

Liberty is very broad and includes freedom from bodily restraint and physical punishment. Basically, anything a person wants to do with his or her body. Example - getting imprisoned, getting hit by a teacher

Procedural Due Process What counts as liberty?

There are generally property interests in the following: 1) Public education 2) Public employment for tenured employees 3) Welfare benefits 4) Driver's License If the state can take something away from a person for no reason at all, there is no property interest.

Procedural Due Process What counts as property?

Defined: the bargaining process created an absence of meaningful choice for the aggrieved party (adhesion) 1. *"Near-miss" cases* EXAMPLE: A signatory is competent but, because of advanced age or language barriers, cannot understand the terms of the contract and operates as if under mental incompetence or duress. 2. *Absence of Bargaining Power* (a) Standard-form contracts with "take it or leave it" provisions (i.e., contracts of adhesion) or a party weakened by poverty or language barriers. 3. *Fine Print Terms*

Procedural Unconscionability

An express warranty exists where defendant made a representation as to the nature or quality of the product that becomes the basis of the purchase. This can occur via advertising, during negotiations for purchase, or as a provision of the contract of sale. An implied warranty Warranty of Merchantability Where the harm is to the product itself, the only claim a plaintiff can pursue is a claim for breach of warranty.

Products Liability on a Warranty Theory

A profit is a nonpossessory interest that gives the easement holder the right to go on someone else's land and take something off of it. Can only be created expressly or by prescription (never by necessity or prior use) Profits are transferable (can be sold). Profits terminate just as easements do. (1) Destruction of the estate (2) Abandonment (3) No notice to a BFP (4) End of necessity (5) Estoppel

Profits Easements What is it How do you create it Can you transfer it When does it end

Under promissory estoppel, courts will sometimes enforce a subsidiary promise to keep an offer open where the offeree has foreseeably and reasonably relied on that option, and injustice can only be avoided by enforcing the promise.

Promises to Keep Offers Open and Promissory estoppel

The type of interest a party may recover under a claim of promissory estoppel depends on the jurisdiction, as some courts award: (1) Expectation damages (2) Reliance damages (3) Choose on a case-by-case basis and tailor the remedy to the injustice at issue

Promissory Estoppel

1) The slim majority of courts hold: the promissory estoppel is available in these circumstances 2) A substantial minority of courts hold: that the common law promissory estoppel doctrine is preempted by the SOF.

Promissory Estoppel available? EXAMPLE: An employee who leaves his current job and moves across the country based on an oral two-year employment contract, only to be dismissed before he starts his new job.

Among those courts that do recognize promissory estoppel, some will impose stiffer requirements on the claimant than those applicable under an ordinary promissory estoppel acton. In particular, courts will look for: (1) the definite and substantial character of reliance, and its relationship to the remedy sought; (2) the extent to which the reliance is corroborated by the evidence of the formation and terms of the contract; and (3) the extent to which the formation and terms of the contract are otherwise established by clear and convincing evidence.

Promissory Estoppel for Statute of Frauds under Common Law

Public disclosure of private true facts is actionable if highly offensive to a reasonable person and not newsworthy. Look for the passage of time - someone's past bad acts disclosed (not news) . Need some sort of publication or dissemination of information. Injunction might be possible since the information is truthful. Not granted to enjoin defamatory speech since it is false. Constitutional issues: If the defendant gets information from public records, they can't be liable for sharing that information.

Public Disclosure of Private True Facts

Sometimes a plaintiff files suit seeking injunctive relief, but can't litigate the suit fast enough to get that relief before the defendant commits some irreversible harm.

Provisional Relief (Rule 65) - In General

A preliminary injunction ("PI") is available only upon notice to the adverse party, and satisfaction of the following elements: (1) Likelihood of Success on the Merits (2) Irreparable Harm (3) Balance of Hardships (4) Public Interest (5) Payment of Security

Provisional Relief (Rule 65) - Preliminary Injunction

There are different types of exclusive remedies provisions, including: (a) *Provisions that limit or alter the measure of damages available* EXAMPLE: An exclusion of consequential damages. (b) *Exclusive remedies such as limits to repair or replacement of defective goods* Such provisions are generally enforceable unless they are unconscionable or they fail of their essential purpose. Limitation of consequential damages for personal injury in the case of consumer goods is prima facie unconscionable.

Provisions Limiting or Excluding Damages

Provisions of the Bill of Rights that cannot be asserted against states via the 14th Amendment Due Process Clause: (1) the Fifth Amendment right to indictment by a grand jury; (2) the Seventh Amendment right to a jury trial in civil cases; and (3) excessive fines clause of the 8th Amendment.

Provisions of the Bill of Rights that cannot be asserted against states via the 14th Amendment Due Process Clause:

a. It doesn't matter that the plaintiff has suffered more harm than one would foresee. Defendant is responsible for the full extent of the harm caused. b. Eggshell Skull Rule: You take your victim as you find them.

Proximate (Legal) Cause Unforeseeable extent of harm:

A superseding cause is an unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury, and thus relieves the original tortfeasor of any further liability. The more culpable the intervening force: the more likely it will be superseding. Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability. Look for passage of time; at some point, liability will be cut off.

Proximate (Legal) Cause Unforeseeable manner of harm Superseding Cause

Proximate (Legal) Cause The injury suffered by the plaintiff must be within the risk created by the defendant's negligence.

Proximate (Legal) Cause Unforeseeable type of harm

D's conduct is a proximate cause of the prohibited result where the resultant harm is: (a) within the risk created by the defendant's conduct in crimes involving negligence or recklessness, or, (b) sufficiently similar to risk created by crimes of intent. Conduct is not a proximate cause where an unforeseeable intervening event supersedes D's responsibility.

Proximate cause

Reasonable suspicion is a level of certainty that will justify only a *brief* investigatory seizure or a *cursory* protective search Reasonable suspicion will never justify an arrest or a full-blown evidentiary search.

Reasonable suspicion justifies...

Public policy may be raised as a defense to the enforcement of a contract in the following four contexts: *Context #1: where the subject of the contract itself is specifically prohibited by law* EXAMPLE: A contract for prostitution, gambling, or bribery. *Context #2: where a contract is formed for the purpose of committing a crime* EXAMPLE: A contract between an employer and a hired assassin. *Context #3: where the contract performance would constitute a tort* EXAMPLE: A publicist being hired for the express purpose of spreading a defamatory story. *Context #4: where the contract performance would violate certain values or freedoms designated by the state* EXAMPLE: A contract that prohibits one party from marrying for an extended period of time.

Public Policy

The contents of an official record may be proved by copy, certified as correct in accordance with Rule 902, or by witness testimony upon comparison with the original.

Public Records (Rule 1005)

A PMM is any mortgage given to cover part or all of the purchase price (as opposed to a mortgage obtained for another purpose, such as redecorating a kitchen). A PMM, if recorded, has priority over other types of mortgages. To maintain number-one status, has to be recorded to give constructive notice to future mortgages.

Purchase-Money Mortgage (PMM)

Where a party failed to fulfill an express condition or is in material breach, he may still be able to recover in quantum meruit: i) the breaching party may recover the reasonable value of the benefits conferred ii) however, such recovery will be reduced by the damages caused by his breach of contract

Quantum Meruit

Quasi-contract = equitable imposition of a contract (1) The party seeking recovery must have conferred a benefit on the other party with a reasonable expectation of being compensated; (2) The other party must have expressly or implicitly requested the benefit; (3) the other party would be unjustly enriched if not required to compensate the party seeking recovery. Has historically been used for implied-in-fact contracts, recently applied to implied-in-law contracts.

Quasi-Contract and Quantum Meruit

Under a race-notice statute an unrecorded conveyance or other instrument is invalid against a subsequent bona fide purchaser (purchases for value, and takes without notice), who records first.

Race-Notice Statute

There are two compelling interests for affirmative action: (a) Remedying the effects of past discrimination by the state; and (b) Achieving a diverse student body in an institute of higher education. Both of these are narrowly construed.

Racial Discrimination Affirmative Action

(a) police are separating a crowd by race in the middle of a riot; or (b) there is affirmative action.

Racial Discrimination Overt classifications may pass strict scrutiny where:

Various plans to hinder desegregation have been deemed unconstitutional, including the closing of all public schools. School boards have an affirmative duty to eliminate intentional racial segregation of schools. Court-ordered busing is constitutional where it is implemented to remedy past discrimination in a particular school system, some sort of de jure segregation.

Racial Discrimination School Segregation:

Carnal knowledge of a woman, not the wife of the accused, against her will and by force or threat of force. Against the victim's will means the victim did not consent. A man could not rape his wife or another man. Mistake of fact as to consent was almost never a defense, because the proof of force or threat of force established defendant knew the victim was not consenting.

Rape - Common Law

The victim's submission was achieved by the use of force or by a threat of imminent harm. If there was no evidence of force with a nexus/connection to the victim's submission, the proof failed to establish the sexual intercourse was against the victim's will, even if the victim verbally protested. As a result, in order to prove the requisite lack of consent, the victim either had to resist "to the best of her ability", or explain the lack of resistance because of the force or the threat used by the defendant.

Rape - Common Law By force or threat of force

Vaginal sexual penetration of the victim by the defendant. While penetration was required, emission was not.

Rape - Common Law Carnal knowledge

(a) Under the modern approach, the force of sexual penetration is sufficient to satisfy the force element of rape. (b) If the jury determines that a reasonable person in defendant's situation would have known the victim did not consent, the defendant is guilty of rape. (c) If the victim is incapable of consenting, the intercourse is rape. Inability to consent may be caused by the effect of drugs or intoxicating substances or by unconsciousness. (d) Consent is determined objectively from the observable circumstances. A victim's subjective lack of consent will not suffice if the objective circumstances suggest that consent existed. (e) Under the modern approach, mistake of fact can be a defense because there is no requirement to prove extrinsic force (which otherwise established defendant's knowledge of lack of consent). (f) However, the mistake must be honest and reasonable. (e) Other non-consensual sexual contact: is generally covered by separate crimes, like sexual battery, indecent acts, sodomy.

Rape - Modern Law

Once minors turn 18, they may expressly or impliedly ratify contracts entered during minority and thus bind themselves to obligations that might otherwise have disaffirmed. Implied = Taking action, making payments, continuing to use the thing at issue in the contract Silence alone is insufficient.

Ratification

The plaintiff has to show that the law is not rationally related to any legitimate government purpose. This is very easy to meet. Both over-inclusive and under-inclusive laws will meet rational basis review.

Rational basis review

Testimony from personal knowledge by showing familiarity with the object Distinctive characteristics: such as gun with initials carved on handle Chain of custody for fungible items: (1) Must be used with fungible items (all items appear identical—cocaine, pills, blood). Accounting for an item's whereabouts from the time of issue until trial. Big area for impeachment by defense counsel in criminal cases. (2) The party entering the item must account for any change in the evidence. The test for a photograph (the crime scene, autopsy) or an x-ray: it must be a fair and accurate portrayal of what it depicts. NOTE: Under Rule 903, authentication by the photographer or x-ray technician is not required; the witness need only be familiar with the scene.

Real evidence may be authenticated by:

A person may assert his Fourth Amendment rights only when the government intrudes on a reasonable expectation of privacy, which requires that: a. The defendant manifests a *subjective* expectation of privacy by making an effort to shield the thing or the activity from the public, and b. The expectation is *objectionably reasonable* because it is an expectation society is willing to recognize.

Reasonable Expectation of Privacy (REP)

Reasonable Suspicion = a belief based upon articulable information used by a reasonable person or police officer that the suspect has or is about to engage in illegal or criminal activity. A police officer's subjective suspicion (instinct) is not objectively verifiable and therefore not reasonable suspicion. Thus to transform "subjective "unreasonable" suspicion" to "reasonable" suspicion, the officer must have some *verifiable objective fact* to support her suspicion.

Reasonable Suspicion

1. Receiving stolen property was a common law misdemeanor. Elements: a. Receipt of stolen property b. Known to be stolen c. With intent to permanently deprive

Receiving Stolen Property

A defendant acts recklessly when he is aware his conduct creates an unjustified risk. A risk may be justified in protection of yourself or others. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and that the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. Recklessness is distinguished from knowledge because D is aware he is creating a risk, but does not have substantial certainty that the harm produced by the risk will occur.

Recklessness

This type of monetary award is designed to *restore the aggrieved party to the position he was in prior to the contract* The aggrieved party's reliance interest is measured by: (a) *anything expenditures made in preparation for performance or in actually performing* (b) *MINUS: any loss which the breaching party can prove the aggrieved party would have suffered even if the contract had been fully performed* Reliance damages may be available where expectation damages are not available, such as when they are too uncertain or speculative.

Reliance damages

A court may set aside a clerk's default judgment for good cause. The court may set it aside in accordance with Relief from Judgment or Order rule. EXAMPLE: On the way to the courthouse to file the answer, D had a heart attack. Six days later, D was able to have his answer properly filed, but the clerk had already entered a default. D may ask the court to set aside the default, and the court will likely do so.

Relief From Entry of Default and Default Judgment

Protects confidential communications made: from penitent to clergyman in his professional capacity as spiritual advisor (a) Either the clergyman or the penitent may assert the privilege. (b) There are no generally recognized exceptions. (2) The statement needs to have been made: under conditions of confidentiality

Religious Privilege

A remainder is a future interest created in a third person, intended to take after the natural termination of the preceding estate. If that future interest is in a third person, it's a remainder. EXAMPLE: "A to B for life, then to C." C has a remainder. Contingent Remainder Vested Remainder

Remainder

This is a rule of fairness Where a party introduces part of a writing or recording, the adverse party may immediately introduce any other writing or part of the writing, which, in fairness, ought to be considered in conjunction with it. Purpose: to avoid misleading the jury and prevent statements from being taken out of context Caveat: Rule 106 is technically not applicable to conversations—only to writings. AKA Original Writing Rule. Common law contra.

Remainder of Related Writings or Recorded Statements (Rule 106) Rule of Completeness

Three types of remedies in tort: (1) Legal remedies (a) Damages (i) nominal (ii) compensatory (iii) punitive (2) Restitutionary remedies (designed to prevent unjust enrichment on the part of the defendant (a) ejectment (b) replevin (3) Equitable remedies (a) injunction

Remedies

(a) A party served with such a request must respond within 30 days and may object to certain requests as outside the scope of discovery. (b) When asked for documents, the responding party must provide them as they are maintained in the usual course of business and label them to correspond to the request. (c) When asked for electronically stored information (ESI), the responding party may produce ESI in the form in which it is normally maintained, or may produce copies of documents stored as ESI.

Requests for Production of Documents, Tangible Items, or Access to Evidence Response

a. What's available for all three types of misrepresentation? They all can be used Use as a "shield" (avoidance): All can be used as defenses to a breach of contract claim Use as a "sword" (rescission and reliance damages): All can be used in a tort action for rescission of the contract and also for damages resulting from reliance on the misrepresentation. What's available to fraudulent and non-fraudulent misrepresentation but not fraudulent nondisclosure? A party may live with the contract and sue for the benefit of the bargain. c. What's available to fraudulent misrepresentation but not to the other two types of misrepresentation? A party can seek punitive damages since it is an intentional tort.

Remedies for Misrepresentation

Removal jurisdiction permits a federal court to hear a case that was originally filed in state court. Removal is only an option for defendants; plaintiffs cannot remove a suit to federal court after having chosen state court.

Removal (28 U.S.C. §§ 1441, 1446)

Removal is not permitted unless all defendants agree to removal. Thus, any defendant wishing to stay in state court can force the case to remain there by not joining in a notice of removal filed by another defendant. This rule is also relaxed in certain types of class actions.

Removal - Multiple Defendants

If the removal to federal court would be based on diversity of citizenship, the defendant must remove the case within 1 year of the day it was filed (not served), unless the plaintiff attempted to thwart removal in some way. This one-year limitation will come into play when a plaintiff changes her claims or parties after initially filing her suit and having process served.

Removal - Special Rule for Diversity Actions:

If a party files an unsuccessful motion for a JML during trial, and then loses at trial, the party may file a "renewed motion for judgment as a matter of law." This motion makes the same argument as an ordinary JML and is decided according to the same standard. Joint motion for a new trial - when making a renewed motion for JML, the movant may move jointly or in the alternative for a new trial (a motion we will discuss shortly). A renewed motion for JML must be filed within 28 days of judgment. Note that the date of judgment is not necessarily the date of the verdict. The date of the verdict is the date when the jury delivers its decision on the contested factual issues. The date of judgment is the date when the court actually declares one party or the other the winner.

Renewed Motion for Judgment as a Matter of Law (Rule 50(b))

In ruling on a renewed motion for JML, the court may (a) allow the verdict to stand, (b) enter the opposite verdict, or (c) order a new trial (even if a motion for new trial was not made). Note, however, that if the court grants a renewed JML motion, it must also issue a conditional ruling on any motion for a new trial. This helps with any potential appeals because, if the court's JML ruling is set aside on appeal, the appeals court can also review the appropriateness of a new trial.

Renewed Motion for Judgment as a Matter of Law (Rule 50(b)) Judicial options:

Requests for admission are used to resolve certain issues prior to trial. Any party can submit to any other party a request to admit the truth of any fact (or a fact's application to law) as well as the genuineness of any document. If the matter is admitted, it is deemed conclusively established for the purposes of the litigation. Parties often use requests for admission in preparation for trial or motions for summary judgment because they obviate the need to prove uncontested elements of a case.

Requests for Admission (Rule 36)

(a) A party served with requests for admission has 30 days to respond. (b) The responding party may admit the contention, deny it, or state that it has made a reasonable attempt to ascertain the truth of the matter but lacks sufficient information to admit or deny it. (c) The responding party can object to questions as outside the scope of discovery, but cannot simply claim that the matter is properly resolved by a jury.

Requests for Admission (Rule 36) Response

A request for a mental or physical examination is used when a party's mental or physical state is an issue in a case. Thus, if P sues D for causing her lower back pain, D can have P examined by a licensed physician to determine the existence and extent of such pain. Importantly, this type of discovery is available only upon court order. Most other types of discovery (e.g., interrogatories, requests for admission, depositions, etc.) may be served on parties without first seeking permission of the court.

Requests for Mental or Physical Examination (Rule 35)

A request for production of documents (whether maintained in physical or electronic format), tangible items, or access to evidence is exactly what it sounds like—an effort to get certain forms of evidence. Most requests in this area will be for documents, but if a party would like to inspect a particular object (e.g., the damaged bumper on the plaintiff's car) or enter real property (e.g., to assess the location of a handrail), those requests can be made as well.

Requests for Production of Documents, Tangible Items, or Access to Evidence

Evidence must be authenticated to be admissible. Authentication sufficiently establishes that the matter in question is what its proponent claims it to be. A reasonable juror could find the evidence "genuine" by a preponderance of the evidence. The judge must admit. The jury has the final decision as to how much weight to give it.

Requirement of Authentication or Identification

A requirements contract is a contract in which the seller agrees to supply the buyer with all of the buyer's requirements for a particular good. Requirements contracts are not considered illusory promises and thus are enforceable.

Requirements Contract

Ways to Prove Mental Incompetence: 1) If a party is adjudicated incompetent and a guardian is appointed, then this adjudication will be sufficient to establish mental incompetence for contract cases. 2) Cognitive Defects A person will be deemed mentally incompetent if he is unable to understand in a reasonable manner the nature and consequences of the transaction. 3) Volitional Defects In many jurisdictions, mental incompetence can be established if: a) A person is unable to act in a reasonable manner in relation to the transaction, and, b) the other party has reason to know of this condition Intoxication is a valid defense to the formation of a contract only where the opposing party knows or has reason to know of the other party's impaired capacity and knowingly takes advantage of it.

Requirements for Mental Incompetence

Arises when you cannot identify what the defendant did that was wrong but the situation smells of negligence Plaintiff needs to show: 1) Typically the result of negligence 2) Defendant is probably the responsible party has control over the harm-causing instrumentality Exclusive control is not required anymore - just show that the defendant is probably the responsible party. 3) Plaintiff did not contribute to the injury Jury can draw an inference of a breach of duty. Only applies in the context of the tort of negligence and only to proving the element of breach of duty.

Res ipsa loquitur ("the thing speaks for itself")

Common Knowledge Exception: When equipment is sewn into a plaintiff or a sponge is left inside a plaintiff after surgery, you don't need experts to establish that this is negligent conduct

Res ipsa loquitur ("the thing speaks for itself") Can be used in the context of medical malpractice.

Where you have multiple defendants you usually cannot use res ipsa. Exception: Where a medical team is acting as a unit, they will be held jointly and severally liable unless they can prove that they did not cause the injury. Only applies in limited context where all defendants are acting as a group.

Res ipsa loquitur ("the thing speaks for itself") Multiple defendants

Rescission is permissible where both parties to a contract are mid-performance. Consideration is provided by each party's discharge of the other party's duties. "I'll let you off if you let me off." Note: The Statute of Frauds will not prevent an oral agreement of rescission that discharges unperformed duties from being enforced unless rescission of a transfer of property is involved.

Rescission

A statement NOT otherwise covered by an exception to the hearsay rule is nevertheless NOT excluded by the hearsay rule under certain circumstances. (1) Statement must be more probative on point than any other evidence. (2) The party must give notice to the opposing party. (3) The statement must concern a material issue (relevancy). (4) The judge ultimately determines whether, in the interest of justice, the statement should be admitted.

Residual Exception (Rule 807) (Catch-All Equivalency)

An answer is a pleading in which the defendant admits or denies the plaintiff's allegations and lists any defenses he might have. Sometimes a party may wish to raise defenses before filing an answer by filing a motion to dismiss. We will discuss motions to dismiss in the section on Pretrial Adjudication.

Responding to a Complaint - Answer

(a) Available Defenses: The defendant should also raise any defenses he has to the plaintiff's claims. There is no limit to the available defenses, but common ones include: statute of limitations, statute of frauds, and assumption of risk. (b) Waiver: If the defendant fails to include a defense in his answer, he will, in most cases, forfeit that defense. EXCEPTION --- Defenses that are not forfeited include: A) failure to state a claim upon which relief can be granted, B) failure to join a necessary party, and C) lack of subject matter jurisdiction.

Responding to a Complaint - Defenses

If a complaint or answer is so vague or ambiguous that the responding party cannot reasonably prepare a response, the responding party may move the court to order the pleading clarified.

Responding to a Complaint - Motion for More Definite Statement

A motion to dismiss seeks the dismissal of a claim and can be filed by any party defending a claim.

Responding to a Complaint - Motion to Dismiss

If a complaint or answer contains redundant, immaterial, or scandalous matter, the court may—on its own or by motion—order the improper material stricken.

Responding to a Complaint - Motion to Strike

Restitution is that alternative to expectation damages that a party can recover for a breach of contract. But there are contexts where restitution might be available to a party even when the other party has not breached a contract: (1) Benefits Conferred under a Failed Contract (2) Benefits Conferred by a Breaching Party (3) Emergency Benefits Conferred by a Health Care Professional (4) Benefits Conferred by Mistake

Restitution and Unjust Enrichment

The restitutionary damages interest is *the value of the benefits conferred upon the other party in the transaction* The aggrieved party's restitutionary interest will be measured, in the court's discretion and as justice requires, by either: (a) *the reasonable value or cost of the benefit conferred*, or, (b) *the extent to which the other party's property has increased in value because of the performance rendered*. An aggrieved party is likely to elect to recover restitutionary recovery when it would exceed the amount recoverable based on his expectation interest, and *this is most likely in a losing contract*. An important limitation *restitution is available in the case where the aggrieved party has partially performed, but not where the aggrieved party has fully performed.* EXAMPLE: Subcontractor completes contractual performance and General Contractor refuses to pay. Subcontractor has no right to seek restitutionary damages and is entitled to recovery of the contract price only.

Restitutionary Damages

EXAMPLE: "A to B for life, but if B tries to sell his interest, then to C." Total Restraint Partial Restraint Conflicts of Law Related to Real Property

Restraints on Alienation

Regarding a products liability case based on a negligence theory, in general, a failure to inspect packaged goods for defects is not a breach of duty if they come from a reputable manufacturer or distributor. If the goods are manufactured or otherwise supplied by a previously unknown or questionable source, defendant's unreasonable failure to inspect is a breach of duty. It would, however, probably be a breach of duty not to inspect a particular product as to which defendant had received or become aware of customer complaints.

Retailer

A party who has made an anticipatory repudiation to the other party may retract the repudiation unless and until the other party: (1) acts in reliance on the repudiation, (2) accepts the repudiation by signaling this to the breaching party, or, (3) commences a suit for damages or specific performance

Retraction of an Repudiation

Once a defendant files a cross claim against a co-defendant, that co-defendant is free to respond with a counterclaim. Like an ordinary counterclaim, a counterclaim filed in response to a cross claim can be compulsory or permissive.

Returning Fire to a Cross Claim:

At strict common law a possibility of reverter could descend through intestacy or will but could not be devised or transferred inter vivos. Under the modern trend a possibility of reverter is freely transferrable, devisable, and descendable.

Reversion Interest's Transferability

A reversion is a future interest retained by the grantor when the grantor transfers less than a fee interest to a third person. This is a silent reversion. EXAMPLES: "A to B for life." Grantor has given a life estate to B but the grantor has not provided for who is going to own the land after B dies. If it doesn't say, it goes back to the grantor, A. "A to B for life, then 10 years after B's death, to C." A is granting B a life estate, and granting C a remainder interest. In the 10-year period in between B's death and C's interest, there will be a reversion interest created in A, the grantor.

Reversionary Interest

There will be a reversion back to A after 10 years.

Reversionary Interest - "A to B for 10 years."

Grantor has given a life estate to B but the grantor has not provided for who is going to own the land after B dies. If it doesn't say, it goes back to the grantor, A.

Reversionary Interest - "A to B for life."

After the death of B's oldest child, there will be a reversion back to the grantor.

Reversionary Interest - "To B for life, then to B's oldest child for life."

A reversion is not subject to the RAP because the grantor's right is already vested. Note: RAP does not apply to any reversionary interests.

Reversionary Interest - Rule Against Perpetuities (RAP)

A reversion is transferable, devisable, and descendible. At common law you could not transfer through inter vivos conveyance but modernly that is allowed. Modern law - you can sell it, will it, get rid of it.

Reversionary Interest - Transferability

The offeror is master of the offer. Therefore, an offeror has the power to revive an offer that the offeree has rejected, and with it the offeree's power of acceptance, and he can likewise revive an offer that has lapsed; all he must do is communicate the revival to the offeree.

Revival of the Offer after Rejection or Lapse

1) Functional Equivalents Rule: offeror revokes by communicating the revocation in a functionally equivalent manner as the offer was made (You offer in the newspaper, you revoke in the newspaper) EXCEPTION: If there's a better way to communicate the revocation that's reasonably available, then such means should be used to revoke. 2) Legal effect of functionally equivalent revocation: it terminates the power of acceptance, even if the offeree is unaware of the revocation (i.e. you didn't read the newspaper that day)

Revocation of an Offer Made to Multiple Offerees

Generally, reward offers are treated as *offers* because they are communications that promise money in exchange for performance of a specified task. 1) Self-limiting rewards: reward offers that indicate the task to be rewards can only be performed once. 2) Open-field rewards: reward offers that indicate the task to be performed can potentially be performed by multiple parties. EXCEPTION: language in the offer that specific a limitation on how many can accept the offer.

Reward offers

If you have property that is jointly owned and one of the co-tenants dies, the property passes to the surviving co-tenant automatically. The right of survivorship takes precedent over a will or inheritance by intestacy.

Right of Survivorship

A violation of the Sixth Amendment does not require defendant know he is being questioned by a government agent therefore, undercover police questioning violates the Sixth Amendment right to counsel.

Right to Counsel Undercover agents

Ripeness bars consideration of claims before they have fully developed because federal courts should not decide constitutional issues before it is necessary to do so. Generally, a court may not review or grant a declaratory judgment of a state law before it is enforced or when there is no real threat the statute will ever be enforced. (NOTE - mootness bars consideration of claims AFTER they have been resolved)

Ripeness

Courts presume that legal counsel is effective. It is very difficult to prevail on an ineffective assistance of counsel claim. To prove ineffective assistance of counsel, defendant must prove: (1) Counsel's performance fell well below a minimum standard of lawyer conduct. Examples: sleeping in trial, failing to file a discovery request, failing to offer vital and clearly exculpatory evidence; and (2) Had the lawyer been effective it would have created a reasonable probability of a different outcome. Based on the totality of the evidence: effective representation would have created reasonable doubt as to the defendant's guilt.

Right to Effective Counsel at Trial

(not a due process right) 1) The 14th Amendment Privileges and Immunities Clause allows every citizen to travel freely from state to state and to set up residency in a new state. 2) The right to international travel: is not absolute and may be subject to reasonable restrictions in the name of national security.

Right to Travel

(not a due process right) Mostly, the right to vote comes from the First Amendment Right of Association and the 14th Amendment. However, there are some more specific amendments set out in the constitution regarding the right to vote: a) 15th Amendment: states cannot discriminate with respect to race and the right to vote; b) 19th Amendment: states cannot discriminate with respect to sex and the right to vote; c) 24th Amendment: there can be no poll taxes; and d) 26th Amendment: all citizens 18 years or older can vote.

Right to Vote

Level of Scrutiny: not every form of government regulation receives strict scrutiny. Some voting restrictions are constitutional while others are not. Total ban? Strict scrutiny

Right to Vote Level of Scrutiny:

the President is not chosen by the overall popular vote. Instead, individual voters select electors as state representatives and they actually choose the President. Who can vote for state electors? Anyone who may vote for state legislature.

Right to Vote Presidential Elections:

a) reasonable residency requirements; b) reasonable voter registration requirements; c) reasonable regulation of the time and manner of casting votes; and d) denying felons the right to vote.

Right to Vote Restrictions which are constitutional:

Impermissible Voting Restrictions: a) cannot impose poll tax; b) cannot require that voters at school board elections own property; and c) cannot count votes using standards that lack uniformity or are too vague.

Right to Vote Restrictions which are unconstitutional:

Each co-tenant is entitled to possess the whole property. Profits - right to share depends on who/what made the efforts Expenses - depends on what the expense is

Rights and Duties of Co-Tenants

Situation where someone is not claiming ownership, but for some reason they have a right to either *Dictate how the land is to be used.* a. Covenant b. Equitable servitude c. Reciprocal servitude *Make affirmative use of the land.* a. Easements b. Profits c. Licenses

Rights in land besides ownership 1. Dictate how the land is to be use 2. Make affirmative use of the land

Unless a contrary intention is manifested, one who assigns for value impliedly warrants four things to the assignee --- (a) the assignor will do nothing to defeat or impair the value of the assignment; (b) the assignor has no knowledge of any fact that would defeat or impair the value of the assignment; (c) the right as assigned actually exists; (d) the right as assigned is subject to no limitations or defenses against the assignor LIMITATION -- An assignment does not operate as a warranty to the assignee that the obligor is solvent or that the obligor will perform his obligation.

Rights of Assignee against Assignor (4)

The basic rule is that: an assignee gets whatever rights to the contract his assignor had, and, an assignee takes the assignment subject to whatever defenses the third party obligor could have raised against the assignor. If the third party obligor has already paid the assignor, they may raise this as a defense UNLESS they have been notified that payment is now owed to the assignee.

Rights of Assignee against the Obligor

If the promisor does not perform, the promisee has a claim for breach of contract. However, if the promisor's performance is intended to benefit a third party, the promisee will be unable to show damages through economic loss. Promisee may still obtain specific performance if appropriate.

Rights of Parties to Enforce the Contract - Promisee's Rights against the Promisor

Under both the First and Second Restatement, an incidental beneficiary *doesn't have the right to enforce the contract*

Rights of Parties to Enforce the Contract - Third-Party Incidental Beneficiary's Rights

Up until the time the adverse possession period has run, the true owner can: eject the adverse possessor and collect damages At the time of the adverse possession, the adverse possessor is considered to be the owner against the entire rest of the world, other than the true owner. Once the adverse possession period has run, the adverse possessor is the true owner rather than a trespasser.

Rights of the Adverse Possessor and True Owner

Upon anticipatory breach, an aggrieved party may: (1) cancel the contract and terminate all rights and obligations; (2) bring an action for damages or specific performance; or, (3) ignore the repudiation and continue under the contract.

Rights of the Aggrieved Party upon Repudiation

A delegation of duties is not a "transfer" of all contractual duties to the delegate. As such, a delegation alone does not relieve the delegator from his obligations under the contract. EXCEPTION - A novation between delegator, delegatee, and third party obligor

Rights of the Obligee against the Delegator

All rights are assignable, EXCEPT - (1) When the assignment would materially alter the risks to or obligations of the other party; (2) When the obligor has a personal interest in rendering the performance in question to the obligee, and not a third party; (3) When it would violate law or public policy; (4) When assignment is prohibited by contract. If an assignment is prohibited by contract, court will treat this as a breach of contract rather than a nullification of the assignee's rights.

Rights to Be Assigned

Intermediate scrutiny: the government must show that the measure being challenged is substantially related to an important governmental interest. Intermediate scrutiny applies to government discrimination regarding sex and illegitimacy.

Standards of Review - Intermediate scrutiny generally

Robbery was a common law felony consisting of all the elements of larceny, plus two additional elements: (1) the taking must be from the person or presence of the victim (meaning an area within his control); and (2) the taking must be accomplished either by force/ violence or by intimidation/threat of violence. The use of force must be contemporaneous with the taking. If the victim is placed in fear, though baseless, there may still be a robbery. Fear based on lies qualifies as threats for constituting battery. Larceny, assault, and battery are all lesser-included offenses of robbery (which means that all of the elements of the lesser offense are included with the great offense).

Robbery

After a Rule 26(f) (discovery plan) conference has been held, the court may order the parties to confer again to discuss the litigation and, in particular, the most efficient way for it to proceed and any possibilities for settlement. Regardless of whether the court orders this conference, Rule 16(b) requires the court to issue a scheduling order. The scheduling order will dictate the schedule upon which the litigation will progress (e.g., periods within which parties can be added, motions made, etc.) and specify particular rules pertaining to discovery (e.g., the scope of discovery on particular issues). The order must be issued within 90 days of when the defendant is served, or within 60 days of when the defendant appears, whichever is earlier.

Rule 16(b) Conference and Order Scheduling Order

a. Rule 26(f) requires parties to meet and discuss the likely content of discovery in the case and draft a discovery plan. b. The plan must be submitted to the court within 14 days of the conference. c. The Rule 26(f) conference must be held at least 21 days before a Rule 16(b) (scheduling) conference is held or order is issued.

Rule 26(f) Conference (a.k.a. Discovery Planning Conference)

Three elements: (a) a question; (b) on cross-examination; (c) inquiring into prior unconvicted acts bearing on (un)truthfulness (or dishonesty). Extrinsic evidence is INADMISSIBLE to prove the prior dishonest act. The examiner is bound by the witness's answer. Questions must be asked in good faith. The bad acts cannot be too remote in time. Consider 403. Only questions of fact are allowed; not rumors, nor arrests.

Rule 608(b): Bad Act Impeachment.

(1) Former Testimony: FRE 804(b)(1) (2) Statements Under Belief of Impending Death: FRE 804(b)(2) (Dying Declaration) (3) Statements Against Interest: FRE 804(b)(3) (4) Statement of Personal or Family History: FRE 804(b)(4) (Pedigree Exception) (5) Forfeiture by Wrongdoing: FRE 804(b)(5)

Rule 804(b): The following five areas are NOT EXCLUDED by the hearsay rule if the declarant is UNAVAILABLE as a witness.

The common law Rule Against Perpetuities provides that "No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest." If you can create an interpretation where someone could be claiming more than 21 years after everyone currently alive is dead, it violates the rule. Can't have any contingencies after life in being + 21 years - everything must be vested at that point.

Rule Against Perpetuities

Does not apply to present estates. Only applies to three future interests: (a) executory interest (springing and shifting) (b) all contingent remainders (c) vested remainder subject to open Two other interests are subject to the rule: (a) purchase option (b) right of first refusal

Rule Against Perpetuities - Application Types of estates where RAP could come into play

EXAMPLE: "A to B so long as the property is used for residential purposes. If it is not used for residential purposes, then to C." Rule Against Perpetuities knocks out "then to C." We are then left with a fee simple determinable with a reversion in A. EXAMPLE: "A to B on condition that the property is used for residential purposes. If the property is no longer used for residential purposes, to C." Rule Against Perpetuities wipes out the executory interest in C. It looks like we are left with a fee simple subject to condition subsequent, but a right of reentry has to be spelled out in the conveyance to be there. Because it is not spelled out, B gets a fee simple absolute. The condition that property be used for residential purposes is a covenant by B and his heirs, and if they do not use it for such purposes, they can be sued for breach but they will not lose the property.

Rule Against Perpetuities - If the future interest is wiped out

The law does not want land tied up forever with ridiculous contingencies that could go on in perpetuity. The rule attempts to place a reasonable limit on contingencies on ownership of land.

Rule Against Perpetuities - Purpose of the Rule

Abolished in a majority of jurisdictions. Also known as the rule against remainders in grantee's heirs, the Rule in Shelley's Case arises in grants that give a remainder to the grantee's heirs. For the Rule to apply: (1) Grantee must get a freehold estate (life estate or fee tail); (2) Grantee's heirs must get a remainder in fee (or in tail); (3) The same instrument must create both grantee and grantee's heirs' interests; and (4) Both estates must be legal or equitable. Result: (1) Grantee gets both a life estate and a remainder; and (2) By merger, grantee gets a fee simple and thus grantee's heirs take nothing by virtue of the grant itself.

Rule in Shelley's Case

Abolished in a majority of jurisdictions. Under the rule of convenience, a class closes when a member of the class is entitled to distribution. If the class is already closed at the time the gift takes effect (i.e. the time of conveyance for an inter vivos gift or time of testator's death for a will), all members of the class at that moment will take. However, any members of the class later conceived or born will not share in the estate. If, at the time the gift takes effect, the class has members entitled to take immediately but the class has not previously closed, all members of the class conceived at the time the gift is made will be included and may take; however, the class will close to the exclusion of afterborn children, who will not share in it. If the class has no members at the time the gift is made, all members of the class, whenever born, will be included and may take. The class stays open until all possible members are born.

Rule of Convenience

The rights of the parties in the event of a failed condition depend on whether the condition is express or implied.

Rules Governing the Failure of a Condition under the Common Law

If the contract contains express conditions specifying performance order, then those specifications control. If the contract is silent as to order of performance: (1) where one party's performance requires a period of time to be completed and the other party's performance does not, then the performance over time is treated as an implied condition of the latter; and (2) where the parties can exchange performance simultaneously, the performances are treated as concurrent conditions of each other.

Rules Governing the Order of Performance Common Law

Under the UCC, parties are free to specify the order of performance - if this is the case, it governs the contract. However, if left unfilled, performance is usually treated as concurrent (each performance is conditioned on the performance of the other). Make course of dealing, course of performance, usage in trade arguments.

Rules Governing the Order of Performance UCC

A sale of goods with services being incidentally involved Example - contract for the sale and installation of a water heater would be governed by UCC

Sale of Goods with Incidental Services

UCC covers *sales* of goods Sales are transactions in which a seller transfers *title of goods* to a buyer for value. Sales are not leases, bailments, or other transactions short of outright sales. Less than full title is not a sale of goods.

Sales

If a contract is for the sale of goods that the seller knows the buyer intends for an unlawful use, then the public policy defense is available to defeat either an action by the seller seeking payment or an action by the buyer seeking delivery.

Sales of Goods intended for Unlawful Use

If a contract for the sale of goods was based on bribery of one party by the other, then* the victim of the bribe has a public policy defense.* EXAMPLE: Buyer sues seller for breach of contract when seller refuses to supply the specified quantity to buyer at the agreed-upon price. Seller raises the defense of public policy, because after the fact Seller learns that buyer bribed Seller's agent with a car in order to secure the unreasonably favorable contract terms.

Sales of Goods via Bribery

The complaining party must first draft a motion for sanctions and serve it on the offending party. The motion should not be filed with the court until 21 days after service on the offending party. The 21-day period is a "safe harbor" for the offending party; it allows him a chance to withdraw or modify any submission allegedly in violation of Rule 11.

Sanctions - How sought

A court may order monetary or non-monetary sanctions. The goal of the sanctions must be to deter repetition of such misconduct by others in a similar position. When an attorney is found to have violated Rule 11, the attorney's law firm must be held jointly liable absent exceptional circumstances.

Sanctions - Nature of sanctions

(1) Any person or entity that has committed a Rule 11 violation or is responsible for a Rule 11 violation is subject to sanctions, except that parties may not be subject to monetary sanctions for violating the "good law" requirement. (2) When an attorney is found to have violated Rule 11, the attorney's law firm must be held jointly liable absent exceptional circumstances.

Sanctions - Who is subject to sanctions?

A timely and specific objection against the admission of evidence MUST be made to preserve the issue for appeal.

Saving issues for appeal

If a suspect is arrested in a home, the *scope* of SITLA is limited to the area within his lunging distance and does not extend to the entire house. However, if police have a reasonable suspicion that others in the home may put them at risk, they may conduct a *cursory protective sweep* of the home to rule out that danger. This "Terry sweep" of the home is limited to ruling out the risk to the officers, therefore the scope is limited to where dangerous persons may be *hiding*.

Searches Incident to Lawful Arrest and Homes

Majority rule - Landlord has an obligation to deliver possession of the premises. : American Rule (minority): The landlord has no obligation to deliver possession of premises, rather, it is up to the tenant to take it.

Tenant Defenses for Rent Payment - Failure to deliver possession

Fraudulent Misrepresentation element This is about a misrepresenter's state of mind - intent to mislead. The requirement of scienter is satisfied if the defendant made the assertion either: a) *Knowing it to be false* b) *Knowing he had no idea whether it was true or false* *The "intent to mislead" requirement* is satisfied if the defendant made the assertion either: a) For the purpose of misleading the aggrieved party, or, b) Knowing there was a substantial likelihood that the aggrieved party would be misled.

Scienter

An accomplice is liable for the crime he purposefully facilitated, and for all other crimes committed by the principal that are: reasonably foreseeable outgrowths of the primary crime a. Foreseeability is: an objective test It's not a defense that the accomplice himself didn't expect the other crime to occur

Scope of Accomplice Liability:

Normally, the *scope of consent is implied* by the request and/or the item the officer indicates he is looking for.

Scope of Consent

A search warrant allows police to search in the *place* identified in the warrant for the *things* listed in the warrant. The scope of the search is limited to: what is *described* in the warrant. Nonetheless, contraband not named in the warrant may be lawfully seized under the "plain view" doctrine: so long as it is discovered within the scope of the original warrant. A location owned by *non-suspects* may be searched pursuant to a warrant. A search warrant for a premises carries with it the right to *detain* occupants during the search, but no automatic right to search them.

Scope of Search Allowed Under a Warrant

The exclusive justification for a Terry Frisk is *protective*, not to look for evidence. As a result, the scope of a Terry frisk is strictly limited to a *cursory inspection* of the suspect's outer clothing to confirm or deny that the suspect is armed. If the frisk/pat down results in the officer feeling something he knows immediately is a weapon or any other contraband the officer may seize the item based on *plain touch* doctrine. If the officer feels something he knows is not a weapon but merely suspects is contraband and has to *manipulate the item* to establish probable cause to seize the manipulation exceeds the scope of the Terry frisk and the seizure is unreasonable.

Scope of Terry Search

Generally can only claim that portion of the land actually occupied. Adverse possessor typically gets whatever the true owner has. Future interests cannot be obtained by adverse possession until they become presently possessory.

Scope of What the Adverse Possessor Obtains

EXAMPLE: If true owner owns a 100-acre parcel, adverse possessor moves on, occupies 10 acres of the parcel and is there for the statutory period, adverse possessor can claim that 10 acres. EXCEPTION - color of title When adverse possessor enters under color of title and occupies a significant portion of the parcel described in the flawed deed, then when that person completes the statutory period, they can claim the entire parcel described in the flawed deed.

Scope of What the Adverse Possessor Obtains Generally can only claim that portion of the land actually occupied.

Scope of cross-examination is limited to (Rule 611(b)): the scope of direct and matters affecting credibility (impeachment questions)

Scope of cross-examination

A search triggers the reasonableness requirement of the Fourth Amendment and is defined as any government -- (1) "Investigatory trespass" against a textual 4th Am interest (*person, papers or effects*) OR (2) Intrusion into a *reasonable expectation of privacy* (REP).

Search

A warrantless search of the arrestee and the area within his immediate control is automatically permissible as an incident to the arrest. SITLA is triggered by a *lawful arrest*, which means an arrest based on probable cause. A subjective *ulterior motive* by the arresting officer is irrelevant. So long as the officer had probable cause for the arrest. Remember, an officer may have PC but may also make a *reasonable mistake*. If an officer conducts an arrest based on PC and discovers evidence during the SITLA, and it later turns out she arrested the wrong suspect, the search is reasonable so long as the mistake was "objectively reasonable." There is no authority to conduct a search incident to *citation*, even if the offense is one that permitted the officer to arrest the suspect. A search incident to a lawful arrest must be *contemporaneous* with the arrest. Although the rationale for the SITLA is protection of the arresting police officers and preservation of evidence, there's no requirement to individually justify each SITLA. All that is required is an arrest, then SITLA is automatic. EXAMPLE: A driver was ordered out of his vehicle and a full search was held lawful, even though the arrest was only for a traffic violation.

Searches Incident to Lawful Arrest

Like any other arrest: the police may automatically search the *person* of the arrestee. If the arrestee has genuine access to the *interior* of the car after being placed under arrest, the SITLA extends to the interior of the car and all *containers* in the car, but not the trunk. If as the result of being placed under arrest the arrestee does not have genuine access to the interior of the car, a search of the interior is permitted only when police have reason to believe *evidence related* to that arrest is in the car.

Searches Incident to Lawful Arrest and Cars

Second-degree murder is any killing with malice but without the requisite additional element to prove first-degree murder. In a jurisdiction that defines 1st degree murder only as murder with P&D, any murder committed without purpose to kill must be 2nd degree murder. Examples include: (1) where the defendant's malice is intent to inflict serious bodily injury; (2) where the defendant acted with wanton and willful misconduct; or (3) felony murder, wher the underlying felony is not specifically listed in an applicable first-degree murder statute.

Second-degree murder

For property to be seized, police must take some action that results in a "*meaningful interference* with a possessory interest." a. If police *take control* of property, it's seized. b. If police place something on the property (like a beeper) that does not interfere with the owner's use of the property, it is not seized.

Seizure of Property

No warrant is required if incriminating evidence is in plain view and: (1) The police are in a lawful *vantage* point to observe the item, (2) The *incriminating* nature of the item is immediately apparent, and (3) The officer has lawful *access* to the point of seizure. The Plain View doctrine is: an exception to the warrant requirement for a seizure, not for a search.

Seizures of Property and the Plain View Doctrine

You do not need extrinsic evidence of a condition precedent to admissibility for the following documents: C O N T A C (1) Certified documents (2) Official publications (3) Newspapers and periodicals (4) Trade inscriptions (5) Acknowledged documents (6) Commercial paper

Self-Authentication

(1) Notarized documents, i.e., documents accompanied by a certificate of acknowledgment executed in the manner provided by law. NOTE: The hearsay rule could apply to render a notarized affidavit inadmissible.

Self-Authentication A: acknowledged documents

(1) documents bearing a seal of the United States, or of any state, district, commonwealth, territory, or possession thereof (public documents under seal); (2) certified documents bearing no seal, if a public officer certifies under seal that the signer has official capacity to sign and that the signature is genuine; EXAMPLE: Conviction record; official transcript from a university or law school. (3) certified foreign documents: genuineness of the signature and the authorized person's official position is required; (4) certified copies of (official) public records. (a) Must be filed or recorded in a public office and certified as correct by either the custodian or other qualified person; could include document under FRE 803(8) Public Records exception.

Self-Authentication C: certified documents

(1) Negotiable instruments; bills of lading. Signatures required as provided by general commercial law (UCC).

Self-Authentication C: commercial paper

(1) Books, pamphlets, and other publications issued by a public authority. EXAMPLE: FAA booklet on Airline Safety Standards; pamphlet on H1N1 (swine flu) issued by the CDC.

Self-Authentication O: official publications

(1) Signs, tags, or labels affixed in the ordinary course of business indicating ownership, control or origin. EXAMPLE: Label on a can of Green Giant peas.

Self-Authentication T: trade inscriptions

1. Self-Defense. An *honest and reasonable* judgment that it is necessary to use force to defend against an *unlawful, imminent threat* of bodily harm: a. Defendant is the victim of an unlawful threat - he is not the initial provoker (*clean hands*); b. Defendant is in imminent danger of unlawful bodily harm c. Defendant uses *proportional force* (no more than reasonably necessary) to prevent the imminent harm.

Self-Defense

1. The double jeopardy prohibition does not prevent dual prosecution by separate sovereigns. Therefore, a defendant may be prosecuted for the same criminal conduct by a federal court and then by a state court, or vice versa.

Separate Sovereignties Doctrine and Jeopardy

Double jeopardy does not require that the prosecution present and prosecute all charges that arise out of the same transaction in one trial. Where the defendant's conduct is divisible into discrete crimes, the prosecution may seek multiple punishments and try the charges separately, provided that they constitute separate offenses for the purpose of double jeopardy. This is also the case when the defendant requests and is granted separate trials on the charges.

Separate Trials and Double Jeopardy

Must process be served every time a claim, counterclaim, cross claim, impleading is filed? In short, no. Service of process need only be accomplished when a new party has been added to the lawsuit (such as through impleader, which we will get to shortly). Without process on the new party, the court's power of PJ over the party will not be activated. For counterclaims, cross claims, and other claims against current parties, however, service of process is unnecessary.

Service of Process and New Claims Filed During the Lawsuit

1) Majority view (lien theory jurisdictions): mortgage is viewed as a lien on property, will not sever If the mortgagor dies before pay-off or foreclosure, the living joint tenant(s) inherits the whole free of the mortgage. If there is a foreclosure before the mortgagor dies, the foreclosure severs the joint tenancy. 2) Minority view (title theory jurisdictions): mortgage is viewed as a title to the property, will sever

Severing joint tenancy by mortgaging interest in property

(a) Can seek a partition action (b) Joint tenant sells interest in the property

Severing joint tenancy through inter vivos act (majority rule)

Need only pass intermediate scrutiny. Less demanding than strict scrutiny so does get upheld in more circumstances Level of scrutiny for gender based affirmative action: benign discrimination in favor of women gets upheld to make up for past discrimination either by the person who is offering the remedial program or to make up for societal discrimination.

Sex Discrimination Affirmative Action - level of scrutiny

(a) A state law giving preference to men over equally qualified women to be administrators of decedents' estates was held unconstitutional. (b) The military cannot make male servicemen automatically eligible for housing benefits while female service members have to prove that their husbands are financially dependent upon them. This is unconstitutional. (c) The Court struck down a law authorizing alimony payments upon divorce to women but not to men. (d) A state cannot set a higher drinking age for men than for women.

Sex Discrimination Examples where discriminating laws were held to be unconstitutional:

Rape Shield Law: A broad rule of exclusion. In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim's sexual behavior, sexual predisposition, and other sexual history is excluded. Sexual behavior includes actual sexual physical conduct as well as the use of contraceptives, fantasies, and any activities that imply sexual activity. Predisposition includes how a person dresses, lifestyle choices, and speech. Predisposition evidence is INADMISSIBLE w/ exceptions.

Sexual Conduct Sex Offense Cases: Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (Rule 412)

In Lawrence, the Court definitively held that criminalizing same-sex sodomy served no legitimate government purpose and is unconstitutional. In Windsor, the Court held that DOMA's definitional provision for "marriage" and "spouse" lacked a constitutionally legitimate purpose insofar as it was motivated solely by animus towards a particular group, in violation of the Constitution's due process guarantees.

Sexual Orientation

In a civil case, evidence IS admissible if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of the victim's reputation IS admissible when it has been placed in controversy by the victim.

Sexual Predisposition evidence is inadmissible. CIVIL Exceptions --

In a criminal case, specific acts ARE ADMISSIBLE in the following situations: 1) Consent: past acts with THIS defendant which tend to show consent. 2) Source of semen, injury, or other physical evidence 3) Evidence that is constitutionally required (6th Amendment Confrontation Clause) -- defendant who is impeaching someone who's testifying against them

Sexual Predisposition evidence is inadmissible. CRIMINAL Exceptions --

Recording statutes only apply to protect subsequent purchasers for value. This includes mortgagees and lien creditors, but not judgment or tax creditors. A grantee who acquires the property by gift, devise, or adverse possession will not qualify as a subsequent purchaser for recording statute purposes. However, such a grantee may still record their interest to protect it against subsequent purchasers of the property.

Shelter Rule Protected Parties

The shelter rule provides protection for a subsequent purchaser who does not satisfy the applicable recording statute. Under the shelter rule, a person who is a successor in interest to a person protected by the recording statute is also protected. EXCEPTION: A subsequent person may not take advantage of the shelter rule if that person attempts to "wash" his deed by conveying to a third person and then immediately taking reconveyance of the property; or commits fraud in respect to the deed

Shelter Rules

Shrink-wrap contracts are those that consumers find when they open boxes or packaging containing purchased goods. Courts are divided on whether the rules of Section 2-207 apply to these contracts. Most courts APPLY 2-207 and say that in consumer transactions, these terms are mere proposals that the consumer can accept or reject. Other courts DO NOT APPLY 2-207 and hold that if the consumer retains and uses the goods, they have accepted the offer on the merchant's terms.

Shrink-Wrap Contracts

The party making the communication expressed a willingness to commit without further assent Does not include preliminary negotiations or invitation to offer. Preliminary Negotiations 1) A generic term that applies to the give and take during bargaining Invitation for an Offer 1) Advanced stage of preliminary negotiations where a communicating party is closing in on a deal, but wants the other party to commit first EXAMPLE: "So, how much are you willing to pay me for these goods?"

Signal that acceptance will conclude the deal

a. A number of rules in contract law require a "signed writing" in order to create an enforceable legal obligation. Examples include: (a) Firm offers (b) Statute of frauds b. Electronic contracting: The Signing Requirement (a) Electronic signatures are legally effective The Writing Requirement (a) Email is sufficient to satisfy the writing requirements of contract law.

Signed Writing Requirements

Rational --- Plaintiff must show that the government action is not rationally related to a legitimate government interest. Intermediate --- Government must show that the government action substantially related to an important governmental purpose. Strict --- Government must show that the government action is narrowly tailored to a compelling state interest.

Standards of Review Rational Intermediate Strict

(a) Future crime or fraud (b) Suits between attorney and client: if the client doesn't pay, or the client sues the attorney for malpractice (c) "Joint Client" exception: Two clients hire the same attorney and are then involved in litigation between each other. Result: Their earlier communications are: not privileged (absent agreement otherwise) H/W, siblings concerning wills or intestate succession, interests in land NOTE: A waiver by one joint holder does not affect the right of another joint holder to claim the privilege. (d) Client identity generally is NOT privileged UNLESS disclosure of the corporate identify will disclose additional or other privileged matters. (e) Fee arrangements: are not privileged. Billing records: No. (IRS can compel discovery)

Situations where there is NO attorney-client privilege:

Defamation in spoken, rather than written, form. Today, a defamatory message not preserved in permanent form is classified as slander. For plaintiffs to recover for defamation they must prove special damages, which are specific economic losses that flow from defamation.

Slander

1) Against plaintiff's business Slander which imputes to plaintiff behavior or characteristics that are incompatible with the proper conduct of his business, profession or office 2) Commission of crime involving moral turpitude/infamous punishment A slander that imputed to plaintiff the commission of a crime involving moral turpitude or infamous punishment (imprisonment or death) is slander per se. 3) Loathsome disease Allegations of plaintiff having a loathsome disease are slander per se. Historically, a loathsome disease was one that was incurable and persisted over time, such as venereal disease or leprosy. 4) Unchastity It was slander per se to falsely impute unchastity to a woman or sexual impropriety

Slander Exceptions - special damages do not need to be proven in these cases.

Enticing or encouraging another to commit a target offense (another crime). Common law: solicitation was a misdemeanor and the crime solicited had to be a felony or breach of the peace. Almost all modern jurisdictions define solicitation broadly to include: requesting another to commit any offense (including misdemeanors and felonies). The solicitor must intend (have the purpose): that the solicitee perform criminal acts (specific intent). Mere approval of the acts is not enough. The offense is complete at the time: the solicitation is made. Once the solicitation is communicated the solicitor cannot "withdraw" from the solicitation. There is no requirement that the solicitee commit the target offense. However: if the solicitee does commit the target offense (or attempt to do so) the solicitation merges into that offense and the solicitor is charged as an accomplice, not with solicitation.

Solicitation

Rational basis will be the level of review in situations of disparate impact. Two exceptions: (1) If the purpose of the measure being challenged was intended to have a racially disproportionate effect, then it is intentional discrimination and will face strict scrutiny. (2) If a neutral standard is being applied in a discriminatory way, it will face strict scrutiny.

Standards of Review - Disparate Impact

*Legislation is frequently the source of the policy invoked.* *Judicial Decisions* May include policies based on: (a) moral and social values (e.g., policy against impairment of family relationships), (b) economic considerations (e.g., policy against restraints in trade, such as judicial governance of non-compete agreements), or (c) protection of governmental processes and institutions. EXAMPLE: A contract under which a private citizen agrees to vote a certain way in exchange for a year's supply of beer would violate the public policy of free and unrestricted exercise of the right to vote.

Sources of Public Policies

a) A problem occurs when a general contractor formulates a bid to an owner and relies on subcontractors' bids before he wants to accept them. The general contractor will have problem if subcontractors revoke before owner awards bid. b) The majority rule is where a general contractor uses a particular subcontractor's bid to formulate his own: promissory estoppel applies to protect the general contractor from revocations by subcontractor

Special Rule for Construction Contracts

Tangible, pecuniary such as medical expenses, lost wages, cost of repairing a car etc. Can recover for past, present and future damages. Future damages are reduced to present value.

Special damages:

As a general rule, federal taxpayers do not have standing to challenge allegedly unconstitutional federal expenditures on the ground that their injury is comparatively minute and indeterminative, and their interest is too remote. Under the traditional view, a litigant lacks standing to assert the rights of third parties not before the court. The Supreme Court has permitted a party to raise the constitutional rights of a third party, if the following two conditions are satisfied: a) A special relationship exists between the claimant and third party because of the connection between the interests of the claimant and the constitutional rights of the third person; or b) The third party is unable or finds it difficult to bring suit on his own behalf.

Specialized Problems of Standing Third Parties

Requires proof that the defendant wanted/desired or expected (is substantially certain) to produce a specifically defined harm, regardless of the objective likelihood of the result occurring (unless the result is inherently impossible). Whenever a crime includes the term "with intent to," that is a specific intent element. Specific intent may be nullified by an honest mistake of fact or by voluntary intoxication. The mistake of fact does not need to be reasonable.

Specific Intent

The UCC liberalizes the rules governing the availability of specific performance for sales of goods in two ways: 1) *Liberalizing the "uniqueness" requirement:* Under the UCC, specific performance is allowed for a buyer who has adequately searched but was unable to find reasonable substitutes, and so is unable to "cover" the breach by seller. 2) *Liberalizing the "capable of immediate performance" requirement:* Under the UCC, specific performance is allowed in cases like output Ks and requirement Ks, which are classic long-term relationships that require cooperation of the parties.

Specific Performance under the UCC

(a) Protects all communications, regardless of confidentiality, both during and before marriage; includes testimony, observations, and impressions. A spouse cannot be compelled to testify about virtually anything. (b) Purpose is to promote marital harmony. (c) The privilege is held by: 1) under common law: party spouse 2) in federal courts (adopted by FRE): Witness spouse, so although cannot be compelled, could testify if so desire A valid marriage is required. No privilege exists if the marriage is void (sham, incest, bigamy). It only applies in the following circumstances: a) criminal cases; b) both during and before marriage, but the entire privilege is lost upon divorce.

Spousal Immunity (Testimonial)

- transfers property from grantor to grantee or grantee to grantee usually as a silent reversion EXAMPLE: "A to B for life. Then 20 years after B's death, to C." B has a life estate. When B dies, property reverts back to grantor. 20 years later, transfers to C. A's reversion would be in fee.

Springing executory interest

The reasonable person standard specifically takes account of age when defendant is a minor. Majority of jurisdictions: A minor defendant's conduct is assessed according to what a reasonable child of the same age, education, intelligence, and experience would have done. Minority of jurisdictions: Children under six are conclusively presumed incapable of being negligent. Exception for all Jurisdictions: Children engaging in adult activities (i.e. operating an automobile, boat, or airplane), however, are required to conform to an adult standard of care.

Standard of Care: Children

Doctors must divulge those risks that are customarily divulged AND material risks. The failure to divulge a material risk is malpractice provided the patient can show that she would have refused the procedure had the risk been divulged. A physician is liable for the intentional tort of battery if he failed to properly inform a plaintiff/patient about the risks and alternatives of a proposed medical procedure or treatment. Plaintiff's consent was said to be negated by the lack of disclosure. This is still the case where there is a gross deviation from consent, such as where a patient agrees to a tonsillectomy, but her leg is amputated instead.

Standard of Care: Professionals Lack of informed consent

Doctors are required to possess and use the knowledge, skill and training of other doctors in good standing in the relevant geographic community. (a) Specialists: National focus (b) General practitioners: Locality focus Rules for medical malpractice apply to architects, accountants and lawyers

Standard of Care: Professionals Medical Malpractice:

Requires physicians to divulge all material risks. Material Risks = risks that a reasonable patient would want to know in deciding whether to undergo a specific procedure. The failure to divulge a material risk is malpractice provided the patient can show that she would have refused the procedure had the risk been divulged.

Standard of Care: Professionals Negligence-Patient Materiality Rule

Objective standard of care - we're not looking into the defendant's mind, but judging their behavior against a reasonable person's behavior. Look at defendant's conduct and measure it against the reasonably prudent person under same or similar circumstances. Must determine what circumstances are relevant. Defendant must rise up to the level of the average person in the community.

Standard of Care: Reasonably Prudent Person Under the Same or Similar Circumstances

Breach is a failure to act as a reasonably prudent person. To analyze breach consider: (1) The probability of harm. (2) The likely magnitude of the harm. (3) The burden on the defendant of avoiding the harm. Custom evidence (a) Plaintiff's proof of Defendant's deviation from custom is evidence of Defendant's breach of duty. (b) Defendant's evidence of compliance with custom may be evidence of no breach of duty.

Standard of Care: Reasonably Prudent Person Under the Same or Similar Circumstances Analyzing Breach

We do not consider mental ability, insanity, reflexes. We do take into account: (1) Physical conditions of the defendant - Where the defendant has a physical condition such as being blind or having lost a leg, that defendant will be held to the standard of the reasonably prudent person with that condition. (2) Emergencies not of the defendant's own making. Jury can consider reasonableness of conduct under the circumstances.

Standard of Care: Reasonably Prudent Person Under the Same or Similar Circumstances What we DO NOT consider

(1) Reasonably Prudent Person Under the Same or Similar Circumstances (2) Children (3) Statutory Negligence and Negligence Per Se (4) Professionals

Standard of Care: Four Possible Standards of Care

When an attorney presents a document to the court, they assert that the submission is based on: (1) Good Faith Submission is not for any improper purpose such as to harass, delay, or needlessly increase the cost of litigation. (2) Good Facts Submission is based on evidentiary support or will likely have evidentiary support after discovery. (3) Good Law Submission is warranted by existing law or presents a non-frivolous argument for a change in existing law.

Standard of Conduct Presenting a document to the court

Rational basis review applies to all classifications not falling under strict or intermediate scrutiny, such as classifications based on age, disability, and alienage if done by Congress. The government generally prevails when rational basis review is applied. (1) EXCEPTION: Recent cases have held classifications based on sexual orientation to be unconstitutional because the legislation lacked a legitimate government purpose; in each case, the legislation failed to even pass the low-level scrutiny of rational basis review.

Standards of Review - Rational basis review generally

The defendant asserting the Fourth Amendment remedy of exclusion must show that the unreasonable search or seizure intruded on his personal constitutional rights. Exclusion requires that the violation: be directed against your defendant's 4th Am. rights, not someone else's. A defendant *may not vicariously assert someone else's constitutional rights* even if the police violated someone else's Fourth Amendment protections.

Standing

The Statute of Frauds requires a writing for a transfer of an interest in real property. The writing must be signed by the party to be charged and must include the following essential terms: (1) description of the property; (adequate so that it can be found) (2) description of the parties; (3) price; and (4) any conditions of price or payment if agreed on. EXAMPLE: A common condition included in modern real estate contracts is that the buyer is not obligated to go through with the transaction unless he can obtain a mortgage or other financing on reasonable terms.

Statute of Frauds

The Statute of Frauds may be satisfied with respect to some of the categories of governed contracts via part performance. Part performance requires a showing of any combination, or all three, of the following: 1) payment of all or part of the purchase price 2) taking of possession 3) making substantial improvements to the property

Statute of Frauds Part-Performance Land Contracts

The Statute of Frauds may be satisfied with respect to some of the categories of governed contracts via part performance. Land Contracts One-Year Contracts Sale of Goods Contracts

Statute of Frauds Performance

If the contract is FULLY PERFORMED - the entire contract as orally agreed is enforceable. If the contract is PARTIALLY PERFORMED - performing party may use quantum meruit to recover for the value of services already performed under the oral contract. If the duration of the contract after part-performance cannot be performed within a year it is still considered unenforceable because enforceability under Statute of Frauds is determined at the time of contracting.

Statute of Frauds Performance One-Year Contracts

The UCC's SOF may also be satisfied by part performance of a sale of goods contract

Statute of Frauds Performance Sale of Goods Contracts

This type of contract is not governed by the one-year provision because the employee's death is possible within a year of that K's formation and this would be full performance.

Statute of Frauds - A lifetime or permanent contract of employment:

Only the contract for future sale is governed by the land provision and requires a signed writing. The present conveyance of land promised for money is outside the Statute of Frauds.

Statute of Frauds - Land-Sale Contracts

RESTITUTION - if contract is for goods An aggrieved party who fails to adhere to the Statute of Frauds may nevertheless recover the value of the benefits conferred based on the formation of a quasi-contract. QUANTUM MERUIT - if contract is for services If services are involved, the party may recover on a theory of quantum meruit, meaning he could sue to recover the reasonable value for the services he rendered. PROMISSORY ESTOPPEL An aggrieved party who fails to adhere to the Statute of Frauds may nevertheless recovery based on detrimental reliance for losses suffered on the faith of the oral contract. This is a little harder to get, b/c anyone can claim they detrimentally relied. Easy to show reasonable reliance where a party to an oral contract within the Statute promises the other party he will create a signed writing, and the party relies by not taking other steps to satisfy the statute, most courts will apply promissory estoppel if the promising party does not create such a signed writing. Where no specific assurances of creating a signed writing are made, but the reliance is instead simply on the underlying oral contract itself is more difficult to show reasonable reliance.

Statute of Frauds -- is there an Alternative Basis for Enforcement?

Generally, a contract need not be in writing and oral and written agreements are equally enforceable. The Statute of Frauds provides an exception by making certain classes of contracts unenforceable unless reflected in a signed writing. The Statute of Frauds applies to certain categories of contracts (marriage, guaranty, >1 year, real property, >$500, executor). For these contracts, the Statute of Frauds requires that the contract be evidenced by a writing signed by the party against whom enforcement is sought. In the context of litigation, the Statute of Frauds is a defense which, if available, may be raised against a party who has claimed a breach of contract. If the contract is within the Statute of Frauds, but the Statute is not satisfied, the party seeking the enforce the contract will have to use another theory of enforcement, such as promissory estoppel or quasi-contract, in order to protect his interests.

Statute of Frauds Introduction

(a) plaintiff is a member of the class intended to be protected by the statute; and (b) the injury caused by defendant's conduct is the type that the statute was intended to prevent. Situations in which the statute standard will not apply: (a) Excused violations such as Emergency situations (b) Licensing statutes

Statutory Negligence and Negligence Per Se When determining whether the statute should apply, a judge considers:

Statute will not be used to set the standard of care but the case proceeds under reasonable and prudent person standard of care.

Statutory Negligence and Negligence Per Se When the statute does not apply (ie. plaintif is not member of class intended to be protected, injury is not the type the statute was meant to protect)

Where a female is under the statutorily prescribed age of consent (usually 16): sexual intercourse by an adult is rape, with no mens rea requirement. Consent is legally invalid here. A victim under the statutorily defined age is legally incapable of giving valid consent, so no matter how "reasonable" the belief of consent might be, it is no defense to statutory rape.

Statutory Rape

Kicks in after foreclosure sale, but only exist if statute authorizing it. Debtor will have limited time (6-18 months) following sale and go to person who bought property and force them to sell at foreclosure sale price.

Statutory Right of Redemption

(1) Identify the type of interest and make sure the Rule applies. (a) executory interest (b) contingent remainder (c) vested remainder subject to open (d) purchase option (e) right of first refusal (2) Can I create an interpretation under the facts that someone can be claiming under one of those interests more than 21 years after everyone currently alive is dead? (a) If yes, the future interest is wiped out. Then consider what you are left with and interpret accordingly. (b) If no, interest will stand.

Steps for dealing with a Rule Against Perpetuities problem:

(1) Give a copy to the judge and opposing counsel. (2) Mark it as an exhibit for identification only. (3) Ask witness to silently read the document. (4) Take back the writing. (5) Ask witness to testify independently of the writing.

Steps of refreshing (procedurally)

In strict liability, defendant is liable for injuring plaintiff whether or not defendant exercised due care. As to certain activities, the policy of the law is to impose liability regardless of how carefully defendant conducted himself. Causing the harm is enough!

Strict Liability

An activity is abnormally dangerous when there is an inevitable high risk of serious harm and it is not a common activity. In most jurisdictions, the owner-developer of tract housing is subject to strict liability if an injury results from an unreasonably dangerous defect in a house he constructed. EXAMPLE: Blasting or dynamite, crop dusting, transporting toxic waste, fumigating. Plaintiff can recover when absent proof of fault. Proximate cause issue: Plaintiff has to be injured by a risk that makes the activity abnormally dangerous

Strict Liability Abnormally dangerous activities

Generally, a defendant may not raise contributory negligence as a defense. Exception: Where plaintiff knew of the danger that justified imposition of strict liability, and his contributory negligence caused exactly that danger to be manifested, such contributory negligence will bar plaintiff's recovery, assuming the jurisdiction applies the traditional contributory negligence doctrine.

Strict Liability Defenses

Wild Animal Rule: If the defendant keeps a wild animal and the plaintiff is injured because the animal does something characteristic of that animal, the keeper is strictly liable no matter how unforeseeable it is that the harm would occur. Plaintiff can recover when absent proof of fault. Domestic Pet Rule: One free attempted bite (after this, owner should know of animal's dangerous propensity). Absent a statute for strict liability, the keeper of a domesticated pet is not strictly liable until the keeper knows or should know of the animal's dangerous propensity. Domestic animals have "known dangerous propensities" only if a reasonable owner would realize that the animal presented a danger of death or injury. Watchdogs: A landowner is strictly liable for personal injuries--even to unknown trespassers--inflicted by vicious watchdogs, as distinct from other animals with known dangerous propensities. This is because vicious watchdogs are considered to be equivalent to mechanical devices.

Strict Liability Possession of animals

The plaintiff is injured due to product related harm. Focus is on the condition of the product that the defendant has put into the market. There are eight elements of strict products liability. (1) Proper plaintiff (2) Proper defendant (3) Proper context (4) Defect (5) Cause in fact (6) Proximate cause (7) Damages (8) SPL Defenses

Strict Liability Products Liability

That the injury is attributable to the defendant is usually proven by showing that the defect that injured plaintiff was in existence at the time it left defendant's control.

Strict Liability Products Liability Cause-in-Fact

(1) May be recovered when there is injury to the person or property damages other to the product itself. (2) Where the harm is only to the product itself the only claim available is breach of warranty. No negligence or strict liability claim.

Strict Liability Products Liability Damages

Almost all jurisdictions impose strict liability where a product is "in a defective condition unreasonably dangerous." Formulations of liability occur under three categories of defects: 1) Manufacturing Defect 2) Design defects 3) Warnings

Strict Liability Products Liability Defect

Any plaintiff who is a user, consumer, or bystander injured may recover damages. Does not matter if the plaintiff is the one who bought the product - just needs to use or be injured by it.

Strict Liability Products Liability Proper plaintiff

Congress has the power to regulate or dispose of federal property. EXAM TIP: If dealing with a federal territory and not a state, Congress has a general legislative power and can pass any law it would like.

The Powers of Congress Property Power

The strict scrutiny requires the government to show: (a) a compelling governmental interest. Generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of a large number of individuals, and not violating explicit constitutional protections. (b) law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored. (c) law or policy must be the least restrictive means for achieving that interest There must not be a less restrictive way to effectively achieve the compelling government interest.

Strict Scrutiny

Strict liability crimes are those which only require the actus reus, not mens rea. No particular mental state is required. Because mens rea is not an element of the crime, mistake of fact is not an available defense.

Strict liability

There is a presumption that structural changes cannot be removed because the premises cannot be returned to substantially the same condition as when the tenant arrived. This is because the nature of the structure has changed.

Structural Improvements

Subjective impossibility occurs when the performance under the contract becomes impossible because of some failure or fault on the part of the performing party - does not excuse performance.

Subjective impossibility occurs

Subpoenas are used to obtain discovery from non-parties. There are two types of subpoenas: 1) subpoenas duces tecum (a demand for documents) and 2) subpoenas ad testificatum (a demand for testimony). In this way, subpoenas are a sort of hybrid discovery tool; they are tools in their own right, but they allow you to use other tools (requests for documents and depositions) to discover information from non-parties.

Subpoenas

A person served with a subpoena may object to the subpoena as outside the scope of discovery, or that it requires the person to travel more than 100 miles from where she resides or works.

Subpoenas Response

The testimony of the subscribing witness is not necessary to authenticate a writing unless required by the laws of the governing jurisdiction.

Subscribing Witness's Testimony Unnecessary

These rights are not spelled out in the constitution. They are unenumerated. (1) NOT Economic Regulation (2) Strict Scrutiny (3) Fundamental Rights

Substantive Due Process

(a) Substantive due process rights are not economic. (b) Economic regulation by the states or the federal government only has to meet rational basis review.

Substantive Due Process Economic Regulation

SCAMPER'D (1) Sexual orientation (2) Contraceptives (3) Abortion (4) Marriage (5) Possess obscenity (6) Education (7) Relatives (8) Death

Substantive Due Process Fundamental Rights—

1) A woman has a protected privacy interest in choosing to have an abortion before the fetus is viable. 2) Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman's right to choose an abortion. 3) Even subsequent to viability: a state cannot force a woman to continue a pregnancy if it endangers her life or health.

Substantive Due Process Fundamental Rights— Privacy Abortion

a) a requirement for parental consent for minors with a judicial bypass option; b) a 24-hour waiting period; c) a requirement that doctors give truthful and nonmisleading information to women seeking abortions; d) refusing public funds; and e) a prohibition on certain methods of abortion if they are not the safest.

Substantive Due Process Fundamental Rights— Privacy Abortion Does not create an undue burden:

a) a total ban on abortion; b) a spousal consent requirement; c) a spousal notification requirement; d) recording the names of patients who seek abortions; and e) requiring minors to get parental consent without a judicial bypass option.

Substantive Due Process Fundamental Rights— Privacy Abortion Examples of undue burden:

There is a right to possess obscene material in the privacy of one's home. However, there is not a protected right to sell or buy that same material. EXCEPTION: the state can criminalize even the private possession of child pornography.

Substantive Due Process Fundamental Rights— Privacy Possession of Obscene Material

Parents have a right to privately educate their children outside the public school system.

Substantive Due Process Fundamental Rights— Privacy Private Education

1) The government cannot prohibit members of an extended family from living in a single household. 2) The state can ban unrelated persons from living together in a single family residence.

Substantive Due Process Fundamental Rights— Privacy Relatives

There is a right to refuse unwanted medical procedures, such as life-support. NOTE -- A terminally ill patient has no right to suicide or assisted suicide.

Substantive Due Process Fundamental Rights— Privacy Right to Die

1) Homosexual sodomy: it is unconstitutional to criminalize homosexual sodomy or other homosexual intimacies and autonomy. 2) Level of scrutiny: rational basis scrutiny.

Substantive Due Process Fundamental Rights— Privacy Sexual Orientation

The right to buy and use contraceptives is fundamental right.

Substantive Due Process Fundamental Rights— Privacy Contraceptives

Defined: the contract terms are unreasonably favorable to one party to the contract Because courts do not police the equivalent of consideration, this is the alternative remedy!! Circumstance #1: Grossly excessive price Circumstance #2: Grossly disproportional consequences for a minor breach Circumstance #3: Provisions binding on one party but not the other Circumstance #4: Provisions which are grossly unfair

Substantive Unconscionability

To be considered homicide, a death must be caused by someone other than the victim; suicide is not homicide. Assisting someone commit suicide cannot result in accomplice liability for murder because no crime existed. But engaging in reckless conduct that proximately causes someone else to take her life (like encouraging someone to play Russian Roulette) will result in homicide liability because it is not based on accomplice liability.

Suicide Assistance

1. The contents of voluminous writings, recordings or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. 2. The originals shall be made available for examination, copying, or both by other parties at a reasonable time and place. The court may also order production in court.

Summaries (Rule 1006)

a. A showing that the originals themselves would be admissible hearsay (substantive evidence!), under either an exception or exclusion. b. The opponent must be given: reasonable pretrial access c. Authentication: Summaries must be: properly authenticated by the preparer

Summaries Foundation

Piggy backing - one fed claim, one state claim Claim arises out of the same case or controversy as claim giving rise to original subject-matter jurisdiction. Step 1: Determine Relatedness Step 2: Watch for Sneaky Plaintiffs Step 3: Consider State Prerogatives

Supplemental Jurisdiction (28 U.S.C. § 1367)

Does the claim seeking piggy back jurisdiction (the "piggy back claim") arise from the same transaction or occurrence as another claim falling within federal question or diversity (the "anchor claim")? If the claim does arise out of the same transaction or occurrence, go to Step 2. If the claim does not, piggy back jurisdiction is unavailable.

Supplemental Jurisdiction (28 U.S.C. § 1367) Step 1: Determine Relatedness

If the anchor claim is a federal question claim, there is no concern with sneakiness and you should go straight to Step 3. If the anchor claim is a diversity claim, P cannot join in parties and sue them under federal SMJ through supplemental jurisdiction if they couldn't sue them under federal SMJ at the outset.

Supplemental Jurisdiction (28 U.S.C. § 1367) Step 2: Watch for Sneaky Plaintiffs

Federal courts must respect states' traditional prerogative to decide matters of state law. A court may decline (but is not required to do so) where: (a) the supplemental claim involves a novel and complex issue of state law; (b) the supplemental claim "substantially predominates" over the federal question or diversity claim; (c) the court has dismissed the anchor claim; and (d) in exceptional circumstances, where other compelling reasons exist.

Supplemental Jurisdiction (28 U.S.C. § 1367) Step 3: Consider State Prerogatives

a. An adjoining landowner must provide lateral support to the property (on either side to the property - you can't dig a hole and have your neigbor's property fall in) Strict liability is imposed.

Support Rights - Lateral Support (on the Sides)

whether the property would have subsided anyway or was it the weight of the improvement that caused the land to subside. (1) If the land would have subsided anyway: remain strict liability situation (2) If it was the weight of the improvement that caused the land to subside, the adjoining landowner is liable only if they: were negligent in depriving the property of lateral support, causing the property to subside.

Support Rights - Lateral Support (on the Sides) If land has been improved, ask: whether the property would have subsided anyway or was it the weight of the improvement that caused the land to subside.

If someone owns the subjacent rights underneath your land, they owe a "right of support" to the land in its natural state and to any buildings in existence at the time of the creation of the subjacent interest. The subjacent interest is liable for damages to subsequently erected buildings only if he was negligent.

Support Rights - Subjacent Support

A state is prohibited from regulating the federal government or its agencies by the Supremacy Clause, except where the federal government consents to the state regulation or the state regulation is not inconsistent with existing federal policy.

Supremacy Clause and State Regulation

Strict scrutiny applies to classifications based on race, alienage (state), and national origin. Such laws will be presumptively invalid, absent a showing by the state that the measure is necessary to achieve a compelling state interest.

Suspect Classifications Strict Scrutiny applies to...

1. The Fourth, Fifth, and Sixth Amendments a. *The Fourth Amendment* - protects the people from unreasonable search and seizure and requires probable cause to support a warrant (*if it's a search/seizure, it must be reasonable*) b. *The Fifth Amendment* - prohibits coerced confessions, unreliable identifications, and provides a *privilege against compelled self-incrimination* c. *The Sixth Amendment* - provides a *right to counsel* for a formally accused individual at each critical stage of the process: trial, preliminary hearing, police questioning, and physical IDs; also provides a right to confront witnesses

Systems of Criminal Procedure

Takings Clause: the Fifth Amendment provides that the federal government cannot take private property for public use without just compensation. This prohibition applies to the states as well, through the Due Process Clause of the 14th Amendment. The Supreme Court interpreted the "public use" language of the Takings Clause to mean "public purpose". This standard is easily met.

Takings

a) Direct government appropriation: where the government actually takes someone's property. b) Regulatory taking: where the government doesn't actually take someone's property, but imposes some sort of regulatory requirement that is so onerous, it is effectively the same thing.

Takings Two kinds of takings:

Types of tangible evidence 1. Real evidence: Tangible evidence actually connected to the case. (a) Physical evidence like guns, drugs, bloody gloves. (b) Documentary evidence includes: writings, recordings, xrays, photographs, computer printouts; self-authenticating documents 2. Demonstrative evidence: Its relevance depends on its ability to explain or simulate material facts in the case. Examples: maps, charts, diagrams, scale models, visual aids Foundation: The exhibit must assist the trier of fact and: "fairly and accurately" represent the scene and the witness must be substantially familiar with the items shown.

Tangible Evidence

Use of commonly available equipment to enhance human's natural senses of sight, hearing, or smell does not transform observations into a search so long as the unenhanced observation would not have qualified as a search. When the government uses a device that is not in general public use, enabling them to see "through the walls" of a home, this is a search because it intrudes upon a REP.

Technology used for search

Authentication---- A showing that a call was made to the number assigned: Then the call is assumed to have gone to that person. A showing that a call was made from an assigned number: That call is assumed to have come from the person assigned that number. In the case of a business: the call was made to the business and the conversation related to business reasonably transacted

Telephone Calls

In deciding whether to grant a TRO, the court applies the same five-part test as applied in PI requests. (1) Likelihood of Success on the Merits (2) Irreparable Harm (3) Balance of Hardships (4) Public Interest (5) Payment of Security Two key differences between a PI and TRO --- Timing: Unlike a PI, which remains in effect during the pendency of a suit, a TRO expires 14 days after issuance. The TRO can be extended for an additional 14 days if good cause is shown. Notice: Unlike a PI, which can be granted only in an adversary proceeding, a TRO can be granted ex parte. To obtain an ex parte TRO, however, the applicant must show the applicant tried to notify the opposing party, was unable to, and needs a TRO to avoid immediate irreparable harm.

Temporary Restraining Order

Mostly, expressly by agreement of parties. There is a way to create by implication where invalid agreement (e.g., three-year oral lease) but very short period, once pays rent check, converts to periodic tenancy.

Tenancy At-Will Lease Creation

This is a very fragile tenancy. It terminates: 1) Freely as soon as either party decides. No notice requirement. 2) If either the landlord or the tenant dies. 3) If either party attempts to transfer their interest.

Tenancy At-Will Lease Termination

(a) *A periodic tenant* If landlord wants the tenant to remain on the land they become a periodic tenant. If the landlord accepts rent this is evidence that the landlord wants the tenant to stay. If the tenant becomes a periodic tenant, the period is determined by the type of jurisdiction. At common law, it was the length of the expired lease, with a maximum one year. Most jurisdictions, today, will treat the period as the period for which rent is reserved (pay rent monthly, then a month-by-month). (b) *A tenant at sufferance* If the landlord does not want the tenant to remain on the land they become a tenant at sufferance until the landlord can succeed in getting the tenant off of the property. If the landlord does not accept rent this is evidence that the landlord does not want the tenant to stay and declared a tenant at sufferance.

Tenancy at Sufferance - A holdover tenant will become either:

At common law, it was the length of the expired lease, with a maximum one year. Most jurisdictions, today, will treat the period as the period for which rent is reserved (pay rent monthly, then a month-by-month).

Tenancy at Sufferance - If the tenant becomes a periodic tenant, the period is determined by the type of jurisdiction.

Created out of a holdover situation. A holdover situation is where a tenant has a tenancy but at the end of that tenancy, the tenant does not move out.

Tenancy at Sufferance Creation

A form of concurrent ownership reserved for married couples, which gives each spouse an undivided interest in the whole of the property and a right of survivorship, unless expressly stated otherwise. A tenancy by the entirety is not recognized in a community property state. (There are nine community property states.)

Tenancy by the Entirety

A form of concurrent ownership, where each co-tenant owns an undivided interest in the whole of the property. Right to possession is equal between the two.

Tenancy in common

At common law: destruction of premises did not excuse the payment of rent because the tenant retained actual possession of the land There was a different result if the tenant leased only a portion of the building. Today: There is no distinction drawn between leasing all or part of the building - destruction of the premises is a complete defense to payment of rent EXCEPTION: If the tenant intentionally or negligently causes the destruction, there will be liability for the rent (and likely waste as well)

Tenant Defenses for Rent Payment - Destruction of the Premises

Discharge arguments in defense of non-payment of rent: impossibility, impracticability, frustration of purpose. EXAMPLE: Tenant leased a second-floor studio to use as a dance studio. In the second year, a student broke through a floorboard and a contractor discovered that the floor was not strong enough to be used as a dance studio. This would constitute frustration of purpose and would discharge the lease. Violation of quiet use and enjoyment of the property.

Tenant Defenses for Rent Payment - Other Contract Defenses

*Warranty of Habitability* - Requires the landlord to maintain the premises in a habitable condition (tied to health and safety). In a majority of jurisdictions, applies to residential leases only. A minority of jurisdictions will extend it to commercial leases as well. If the landlord fails to do so and the premises become uninhabitable and the tenant moves out, it could be viewed as a constructive eviction. If there is a problem but the tenant doesn't have to move out - the tenant can notify the landlord to correct the problem and is obligated to give the landlord a reasonable period of time to fix it. If the landlord has not done what is necessary, the tenant can do what is necessary and offset the cost of doing so against rent that is owed. There are other statutory obligations imposed by each state.

Tenant Defenses for Rent Payment - Potential offset from some sort of duty that is imposed upon a landlord

The tenant surrenders the premises to the landlord, and the landlord accepts. In order to have the defense to payment of rent the landlord MUST ACCEPT the surrender and RETAKE possession of the premises. (b) It is very rare to see a defense of surrender. 1) Where the tenant vacates, the landlord will be required to mitigate damages via contract law

Tenant Defenses for Rent Payment - Surrender of premises

*Actual eviction* A partial actual eviction excuses the tenant from paying any rent. (Note that this acts as sort of a penalty for the LL's bad-faith behavior, which is why the tenant gets complete rent cancellation.) *Constructive eviction* Tenant must actually move out within a reasonable time following the act constituting the substantial interference. If there is a total constructive eviction (i.e. entire premises are unusable) it is a defense to the payment of any rent If there is a partial constructive eviction (i.e. one room is totally ****ed up) it will give rise to a reduction in rent only

Tenant Defenses for Rent Payment - Tenant Eviction

An assignment is a transfer of all interest to a new party. A sublease is a transfer of less than the entire interest in the contract. (a) Assignee: if a tenant transfers all of the remainder of the rental obligation (b) Sublessee: if a tenant transfers only a portion of the time left on the rental obligation

Tenant's Transfer of Interest - Assignment versus Sublease

(a) Can be enforced by the landlord against the original tenant because the contractual nature of the relationship. (b) In order for the original landlord to enforce against a new tenant, we must meet the requirements for a covenant running with the land: Vertical privity is the major issue. An assignee is in privity of estate with the landlord but a sublessee is not, so a covenant can be enforced against an assignee but not the sublessee.

Tenant's Transfer of Interest - Every lease contains covenants and the prime covenant that we care about is the covenant to pay rent.

ASSIGNMENT The assignee comes into privity of estate with LL, while the tenant remains in privity of contract with LL. Tenant is always liable to LL for the rent, even after assignment, via privity of contract, unless there is a contract novation that releases him. The assignee is liable to LL for the rent, via privity of estate, unless he re-assigns to a new assignee who takes over privity of estate. SUBLEASE In a sublease, the sublessee only comes into privity of estate and privity of contract with the tenant, owing the tenant rent, while the tenant continues to owe rent to LL

Tenant's Transfer of Interest - Liability of Parties for Rent

(a) The American rule of the free revocability of offers: an offeror may revoke an offer at any time for any reason, so long as.... 1) it's revoked before the offer is accepted. 2) revocation must be communicated to the offeree.

Termination by Offeror's Revocation

Destruction of the servient estate Termination arising from the actions of the easement holder Termination arising from the actions of the owner of the servient estate End of necessity

Termination of Easements

Generally will terminate an easement unless the owner of the servient estate intentionally caused the destruction. EXAMPLE: Easement holder had an easement to walk through a building on the servient estate. The building collapsed. This would terminate the easement unless the owner intentionally destroyed the building

Termination of Easements - Destruction of the servient estate

Only works when the easement was created by necessity. If the necessity ends, the easement ends.

Termination of Easements - End of necessity

(1) Merger of Title (2) Written Release (3) Abandonment (4) Estoppel (5) Severance

Termination of Easements - Termination arising from the actions of the easement holder (5)

Anytime the owner of the dominant estate also acquires the servient estate, there is a merger of title which will terminate the easement (a) If the owner then sells off the servient estate, the easement is not automatically recreated.

Termination of Easements - Termination arising from the actions of the easement holder - Merger of Title

Written release expressly terminating his rights in the easement. Must satisfy the Statute of Frauds

Termination of Easements - Termination arising from the actions of the easement holder - Written release

(1) Prescription: the owner of the servient estate interferes with the use of the easement for the statutory period. (2) Servient estate is sold to a bona fide purchaser who doesn't have any notice of the easement.

Termination of Easements - Termination arising from the actions of the owner of the servient estate

There is only one way to terminate, which is where the current owner dies without heirs, and the property escheats to state. This is rare bc there are usually hiers.

Termination of Fee Simple Absolute

The power of acceptance can also be terminated if the offeree refuses to accept the offer. There are three ways that rejection can be effected: 1. Outright rejection 2. Rejection via Counteroffer 3. Rejection via Non-Conforming Acceptance

Termination of Offer by Offeree's Rejection

A euphemism for a "non-arrest" seizure. Between a routine police encounter and arrest is a Terry Stop. A Terry Stop is a "brief investigatory seizure" because police require the suspect to interact with them, therefore triggering the Fourth Amendment. *Stop and frisk* The difference between a Terry Stop and an Arrest is: duration and purpose. A Terry Stop is not the initiation of criminal action, it is for the *sole purpose of investigating a "reasonable suspicion" crime* is about to, or has recently occurred. The permissible duration of a Terry Stop is the time necessary to confirm or deny the suspicion. (a) *If confirmed*, the suspicion becomes *probable cause* justifying arrest. (b) If *denied*, the seizure must *terminate*.

Terry Stop

The permissible scope of a Terry Stop is the time required: in due diligence to confirm or rule out the suspicion.

Terry Stop Scope

Reasonable suspicion that a crime is in progress or has just been committed by the suspect justifies a brief investigatory seizure of the suspect (a Terry Stop) to confirm or rule out the suspicion. Remember, reasonable suspicion for a Terry Stop can "blossom" into probable cause. If during the investigatory stop the police officer obtains additional information rising to the level of probable cause, the Terry Stop may be escalated to an arrest and the suspect may be searched incident to that arrest.

Terry Stop Standard

Unlike a non-testifying expert, the opinions held by experts who are expected to testify at trial are discoverable—but only to a limited extent. Besides the information contained in the expert report (which is a mandatory disclosure), a party can also obtain: (a) Communications relating to compensation for the expert's study or testimony; (b) Communications relating to the data provided by the attorney to the expert; (c) Communications relating to any assumption the attorney asked the expert to make in developing the expert opinion.

Testifying Expert

If defendant offers factual evidence, rather than character, that the victim was the initial aggressor, the prosecution may offer evidence of the victim's good character for peacefulness. A criminal defendant may offer (a) evidence of his own awareness (b) of the victim's bad character for violence through reputation or specific bad acts: (c) for the LIMITED purpose of showing the defendant's state of mind. Establishes his fear of the victim, that he was warned the victim was coming for him. Note, this is NOT character, but it shows the defendant's reasonableness of the use of self-defense.

Testimony about a victim Criminal homicide cases

Contents of a writing may be proved by the testimony, deposition, or admission of the opposing party without accounting for the non-production of the original writing because usually not in their possession.

Testimony or Written Admission of Party

The Fifth Amendment states that "no person shall be compelled in a criminal case to be a witness against himself." a *"real and substantial fear"* that his testimony will result in self-incrimination or contribute to his criminal conviction in the United States. applies *only to "testimonial" evidence*, and does not permit a witness to refuse to provide other evidence even if it is clearly incriminating (blood, hair, DNA, fingerprints, participation in a lineup, handwriting samples, etc.). Proof of waiver is normally established by the mere act of answering police or government questions. A "warning" and "express waiver" is required: only when the suspect is in custody pursuant to the Miranda rule.

The 5th Amendment Privilege Against Self-Incrimination (PASI):

(1) *Use/Testimonial Immunity* prohibits the use of the witness's tesitmony or any evidence derived from that testimony. This type of immunity fully supplants the PASI, and permits the government to have the court *force the witness to testify*; Use/testimonial immunity does not bar subsequent prosecution of the witness so long as the evidence has no connection to the testimony. (2) *Transactional immunity*: is extremely broad and prohibits any future prosecution of the witness for the transaction that is the subject of the testimony.

The 5th Amendment Privilege Against Self-Incrimination (PASI): The government can eliminate the risk of self-incrimination) by granting immunity. There are two types of immunity:

With Permission: If you cannot amend a pleading as of right, the only way to amend it is by getting permission. (a) Permission of opposing parties: If the opposing party or parties consent to the amendment, a party may amend her pleading. (b) Permission of the court: Regardless of whether the opposing parties consent, a party can amend a pleading if the court permits her to. In considering whether to permit amendment, the court will consider the reason for the delay in amendment and whether the amendment will prejudice the opposing party. Permission to amend is usually liberally given by courts.

The Ability to Amend - w/ permission

A promise is unenforceable unless it is supported by consideration. The promise has some value and must be exchanged for something else of value such as: (1) a counter-promise, or, (2) performance given to the promisor by the promisee as quid pro quo for making the promise.

The Bargain Theory of Consideration

Common law is the default law that governs contractual relations. It is comprehensive. If the UCC is silent on an issue, common law governs.

The Common Law of Contracts

To initiate a lawsuit, the first step is filing a complaint. A complaint must contain three items. (1) The grounds for subject matter jurisdiction (2) A statement of facts (3) A demand for judgment and relief

The Complaint Contents (Rule 8)

Once a plaintiff has filed her complaint, the next step is to inform the defendant of the pending action. This is called "serving process."

The Complaint Service of Process (Rule 4)

a. Exclusive Federal Power: reserves certain enumerated powers exclusively for the federal government (i.e. foreign affairs and immigration); b. Individual Rights: restricts the state governments from acting in violation of Constitutional provisions; and c. Preemption: provides, under the Supremacy Clause, that if Congress enacts legislation with the intention of preempting state law, the Congressional regulation will control.

The Constitution limits the state's police powers by:

States can't pass laws that impair contract obligations Applies ONLY to state legislation. DOES NOT APPLY TO-- State court decisions., federal government. In determining whether a contract may be modified, the Court will consider: (1) the severity of the impairment; and (2) the importance of the public interest to be served.

The Contract Clause (OL VIII. A.)

(1) Exception #1: a written promise to pay a debt barred by limitations is enforceable. (i.e. SOL) (2) Exception #2: a written promise to pay a debt discharged by bankruptcy is enforceable.

The Exceptions to the "Past Consideration" Rule

All civil and criminal trials and proceedings in federal courts, including bankruptcy and admiralty cases and proceedings. Military courts have their own separate proceeding! Federal rules do not cover.

The Federal Rules govern:

Generally more liberal than common law rules, and have a presumption of admissibility (they favor the admission of evidence)

The Federal Rules of Evidence

Government action - not private action. a. *Silver Platter* Doctrine: When a private party acting on his own acquires evidence that the government later seeks to introduce in a criminal prosecution, it does not trigger: the Fourth Amendment. b. However, when a private party acts *at the direction* of a government agent or pursuant to an official policy: any search or seizure will be subject to Fourth Amendment scrutiny.

The Fourth Amendment applies only to:

An offer creates the power of acceptance in the offeree. This gives the offeree the power to create a contract simply by accepting the offer. When an eligible offeree exercises the power of acceptance before that power is terminated, a legally binding contract is formed between the parties.

The Legal Effect of an Offer

The Miranda warning and waiver requirement is triggered by *custody + interrogation.* CORROSIVE ACID (coercion) needs ANTACID (warning) A valid Miranda waiver restores confidence that a suspect's statements made during custodial interrogation are in fact the product of free will and therefore not the product of inherent coercion because it "neutralizes" the coercive effect of custodial interrogation. In order to establish *valid waiver* police must inform the suspect of their Miranda rights prior to questioning.

The Miranda Rule

(1) the right to remain silent; (2) anything said can be used against him in court; (3) the right to the presence of an attorney; and (4) if he cannot afford an attorney, one will be provided for him

The Miranda Rule These warnings inform suspect of:

Under both common law and the UCC, the obligation of good faith and fair dealing in the performance and enforcement of contract requires: (1) Honesty in fact (cannot lie) (2) For merchants, the observance of reasonable commercial standards of fair dealing in the trade (acting reasonably within the industry) It additionally requires good faith where a contract does not address a term (in gap-filling). The obligation of good faith is not applied to negotiations or other precontractual conduct.

The Obligation of Good Faith and Fair Dealing

If a contract leaves the price to be fixed by one of the parties, then *that party must fix the price in good faith*.

The Obligation of Good Faith and Fair Dealing Open Price Term:

In both output and requirement contracts under the UCC, the party entitled to determine the particular quantity of goods to be sold—either the buyer demanding delivery of his requirements or the seller demanding purchase of her output—must make that determination in good faith. Cannot lie about your output or your requirements. In addition to the good-faith requirement, the UCC prohibits any unreasonably disproportionate demand or tender, if there was either: 1) a stated estimate 2) a past course of dealing

The Obligation of Good Faith and Fair Dealing Open Quantity Term

If a contract contains a satisfaction clause or similar term, then the determination as to whether a party's performance obligation is complete must be exercised in good faith

The Obligation of Good Faith and Fair Dealing Satisfaction Term

In order to constitute an offer, a party's communication must meet two requirements. 1. *Outward manifestation* 2. *SIgnal that acceptance will conclude the deal*

The Offer

Members of Congress cannot be punished or prosecuted for anything they say during debate in either house. This is limited to: things they say during debate on the floor. Members of Congress can be liable based on defamation for issuing press releases or newsletters that injure reputation. This Clause does not bar prosecution for taking a bribe to influence legislation.

The Powers of Congress Speech and Debate Clause

The parol evidence rule governs the admissibility of oral and documentary evidence of parties' negotiations leading up to and occurring contemporaneously with the execution of the written contract.

The Parol Evidence Rule

The Supreme Court has determined that the Necessary and Proper Clause gives Congress complete and plenary power to fix and determine the maritime laws throughout the country.

The Powers of Congress Admiralty and Maritime Power

Congress has the power "to establish uniform Laws on the subject of Bankruptcies throughout the United States".

The Powers of Congress Bankruptcy Power

Congress has the power to enforce: (1) The 13th Amendment, banning slavery; (2) The 14th Amendment, prohibiting states from violating due process, equal protection, and privileges and immunities; and (3) The 15th Amendment, prohibiting states from discriminating with respect to race in voting rights.

The Powers of Congress Civil War Amendments

To validly enforce the 14th or 15th amendments against states, Congress must show that: (1) state governments have engaged in widespread violations of the Amendment; and (2) the legislative remedy is "congruent and proportional to" the violations. If there is valid 14th or 15th Amendment legislation, Congress can overcome sovereign immunity, which it cannot do otherwise.

The Powers of Congress Civil War Amendments To validly enforce the 14th or 15th amendments against states, Congress must show that:

Congress can regulate: (1) channels of interstate commerce (i.e., highways, waterways, and air traffic); (2) instrumentalities of interstate commerce (cars, trucks, ships, airplanes); and (3) Activities that "substantially affect" interstate commerce. Substantial Effect or Cumulative Effect Doctrine

The Powers of Congress Commerce Power

However, Congress can regulate if when all such activities are put together, a substantial cumulative effect upon interstate commerce will result.

The Powers of Congress Commerce Power Cumulative Effect

1) Cannot use to regulate intrastate non-economic activity 2) The commerce power cannot overcome state sovereign immunity. Congress cannot use the commerce power to create a private cause of action for money damages against a state. It can bar racial discrimination by private parties in activities connected with interstate commerce, but it cannot bar racial discrimination by a state so that private parties could enforce that law by seeking money damages. For that, Congress would need to go to the 13th, 14th, or 15th Amendments.

The Powers of Congress Commerce Power Limitations:

Congress has the power to regulate any economic activity, whether carried on in one state or many, which has a substantial effect upon interstate commerce. To validly exercise its Commerce Clause power under the "substantial effects" test, Congress must now show: (1) that the regulated activity is "economic" in nature; and (2) that the regulated activity (when taken cumulatively throughout the nation) has a substantial effect on interstate commerce. The Commerce Clause has been used as the vehicle to uphold laws aimed at barring racial discrimination in activities connected with interstate commerce. Limitation - the Tenth Amendment prevents Congress from interfering with a state's lawmaking processes. Congress may not commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.

The Powers of Congress Commerce Power Substantial Effect:

Congress can give artists, scientists, and authors exclusive rights to their writings and discoveries.

The Powers of Congress Copyright and Patent Power

Congress can create an executive agency (i.e. FDA) and can give the agency some legislative power that will prevail over inconsistent state law Limitation: Congress can delegate power so long as there is some intelligible principle that guides the agency.

The Powers of Congress Delegation of Power

Enumerated powers include the power --- 1) to collect taxes and spend money for the general welfare, 2) to borrow money on the credit of the United States, 3) to regulate commerce with foreign nations and among the several states, 4) to declare war, and, 5) to raise and support the army, navy, and militia.

The Powers of Congress Legislative Power Sources of Power to Legislate Enumerated powers (5 total)

Give Congress the power to put amendments into effect by "appropriate legislation."

The Powers of Congress Legislative Power Sources of Power to Legislate The Enabling Clauses

The implied power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof." EXAM TIP: The Necessary and Proper Clause as an answer by itself will usually be incorrect. If it's the Necessary and Proper Clause in conjunction with another power, it is more likely to be a right answer.

The Powers of Congress Legislative Power Sources of Power to Legislate The Necessary and Proper Clause

Congress may establish Post Offices and Postal Roads.

The Powers of Congress Postal Power

Although the Constitution does not expressly give Congress the power of eminent domain, the power to take private property for public use is implied as an aid of the other powers granted to the federal government. This power is limited, however. The Fifth Amendment provides that private property shall not be taken for public use without compensation.

The Powers of Congress Power of Eminent Domain

Article I, section 8, clause 1, provides Congress with the power to spend and pay debts for the general welfare. EXAM TIP: Do not say that something is unconstitutional because it is not for the general welfare. By exercising its spending power, Congress can require states to comply with specific conditions in order to qualify for federal funds.

The Powers of Congress Spending Power

(1) the spending serves the general welfare; (2) the condition is unambiguous; (3) the condition relates to the federal program (relatedness); (4) the state is not required to undertake unconstitutional action; and (5) the amount in question is not so great as to be considered coercive to the state's acceptance.

The Powers of Congress Spending Power Congress may place a condition on receipt of federal funds by a state if:

Congress has the power to impose and collect taxes, duties, imposts, and excises in order to pay debts and spend for the general welfare. Congress can: (1) raise revenue (objective test); (2) intend to raise revenue even if it doesn't (subjective test); or (3) regulate the activity taxed (regulatory test). A congressional act purporting to be a "tax" should be upheld as a valid exercise of the taxing power provided that it does, in fact, raise revenue (the objective test) or that it was intended to raise revenue (the subjective test). Congress has used its taxing power as a necessary and proper means of achieving a regulatory effect. Generally, as long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes. As a general rule, the modern judicial trend is to uphold any tax as valid if it is, in fact, a revenue-raising measure.

The Powers of Congress Taxing Power

Congress may [Article I, section 8]: (1) declare war; (2) raise and support Armies; (3) provide and maintain a Navy; and (4) organize, arm, and call forth a militia. The war power confers upon Congress very broad authority to initiate whatever measures it deems necessary to provide for the national defense in peacetime as well as in wartime. Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings, and try enemy combatants. EXAM TIP: A question might ask what rights does a terrorist have with respect to detention? Both U.S. citizens and non-U.S. citizens within the United States (or U.S. territories) are entitled to Due Process rights.

The Powers of Congress War and Defense Powers

1. Legislative Power 2. Commerce Power 3. Taxing Power 4. Spending Power 5. War and Defense Powers 6. Immigration and Naturalization 7. Investigatory Power 8. Property Power 9. Power of Eminent Domain 10. Admiralty and Maritime Power 11. Bankruptcy Power 12. Postal Power 13. Copyright and Patent Power 14. Speech and Debate Clause 15. Civil War Amendments 16. Delegation of Power

The Powers of Congress (16)

The law explained above is the law of joinder. The law of joinder, however, does not displace some of the other law we have discussed. What happens, for example, if the law of joinder allows a claim to be added but the additional claim is not consistent with the law of SMJ, PJ, or venue?

The Relationship Between Joinder and SMJ, PJ, and Venue

PJ is a necessity for every party. (Remember, in class actions, class members are not "parties" for the purposes of personal jurisdiction; only the lead plaintiffs are parties.) Thus, if a plaintiff sues multiple defendants, or a defendant impleads a third party, the court must ascertain whether each and every party before it is subject to the power of the court. EXCEPTION - Bulge Rule

The Relationship Between Joinder and SMJ, PJ, and Venue Personal Jurisdiction

. Federal question, diversity, or supplemental subject matter jurisdiction is required for every claim to a federal lawsuit - including claims, counterclaims, crossclaims, and impleader claims .

The Relationship Between Joinder and SMJ, PJ, and Venue Subject Matter Jurisdiction

Unlike SMJ and PJ, the law of venue need only be consulted when the lawsuit is filed. If claims are joined after the initial filing, those claims may not be challenged for being brought in an improper venue.

The Relationship Between Joinder and SMJ, PJ, and Venue Venue

Common law: a victim of unlawful violence had a duty to retreat before resorting to homicidal self-defense 35 states have eliminated this. In these states, any victim of unlawful imminent threat of death or grievous bodily harm may stand his ground. In other states that require retreat, retreat is not required when: (a) Defendant is in their own home, car, or office (Castle Exception) (b) Retreat is not a feasible

The Retreat Rule.

The right to counsel attaches to all critical stages of the proceedings that affect the defendant's right to a fair trial: Trial, preliminary hearing, corporeal identifications, police questioning A defendant may not be imprisoned for any offense unless he was represented by counsel or he waived his right to counsel. The government must provide counsel to indigent defendants whose cases meet this definition. The trigger for providing free counsel is the actual result - there is only a violation if the trial actually resulted in confinement.

The Right to Counsel at Trial

A right to a speedy trial is guaranteed by *the Sixth Am* While most state statutes also include a speedy trial right the only remedy for a Sixth Am. violation is *dismissal with prejudice*. The speedy trial clock begins running *once the defendant is accused* by being charged or arrested for a crime. The primary interests served by the speedy trial rule are *accuracy and prevention of excessive pre-trial stigma.* (2) There are three "types" of prejudice, listed from least to most significant: (a) Anxiety, (b) Oppressive pre-trial incarceration, (c) Degradation of evidence that compromises the accuracy of the trial.

The Right to a Speedy Trial

Pre-arrest/pre-charge delays are not considered in speedy trial analysis and there is no requirement to charge a defendant immediately after report of a crime, although if pre-trial delays are totally unjustified and result in prejudice they may violate due process.

The Right to a Speedy Trial Pre-arrest/pre-charge delays

a. *Length of delay* (1) Normally a delay of more than a year will trigger inquiry. (2) Defense requested delays, including motions, are excluded from the duration calculation. b. *Reason for the delay* (1) A "good" reason is one that the prosecution has no control over. (2) A "bad" reason is one that the prosecution could have avoided by due diligence; c. *Demand for speedy trial* (1) While this is not essential, failing to do so normally indicates the defendant did not consider the delay prejudicial. d. *Prejudice to defendant* (1) The unreasonable delay normally must result in prejudice to justify dismissal

The Right to a Speedy Trial The test for violation considers the following factors:

The actual full signature of the party against whom enforcement is sought is not necessary. What is needed? *Any symbol* used with the intention to authenticate the writing Examples: initials; a typed, stamped, or pre-printed signature; or letterhead

The Signature Requirement

(1) It only shields the defendant from questioning on the offense he has been charged with. (2) Police may continue to question on other offenses, even if those that are factually related to the charged offense.

The Sixth Amendment right to counsel is offense-specific

Police are permitted to use checkpoints to conduct brief seizures and/or limited searches to protect the public from an immediate danger. CANNOT use checkpoints for general crime control or discovery of evidence Examples: Sobriety checkpoints, searches for recently escaped prison inmates, counter-terrorism checkpoints, and checkpoints to search for suspects of a recent crime. Police officers may not randomly stop vehicles to check license and registration. Search/seizure under the exception -- (1) Must be based on a fixed formula that deprives individual officers of discretion to select the subjects. (2) Must also be narrowly tailored in scope to address the immediate danger. (3) Must be conducted in a location and a manner that minimizes citizen anxiety. Plain view applies.

The Special Needs Doctrine

(1) Hold acts of the other branches of the federal government (the executive branch and Congress) unconstitutional; (2) Hold state statutes unconstitutional; (3) Review state court decisions to ensure that the states act in conformity with the US Constitution and federal statutes; and (4) Decide other state law questions.

The Supreme Court has the power to:

(1) Applies only to corporeal identifications (human in person) and (2) only after the initiation of formal adversarial process (when the suspect becomes the defendant). Because the Supreme Court has held an out-of-court corporeal identification procedure is a "critical stage" in the adversarial process the defendant may not be subjected to such an ID without a lawyer or a waiver. It does not matter why the defense lawyer is not present at the out-of-court identification. Even if police act in total good faith, and the lawyer is absent because of his own negligence, conducting the lineup without his presence violates the Sixth Amendment. The more inherently suggestive the out of court identification, the more difficult it is to prove by clear and convincing evidence it did not "taint" the subsequent in court identification. Look to the same "reliability" factors for due process to assess whether the in court identification is independent from the out of court identification.

The Violation of the Right to Counsel as a Basis to Exclude an Eyewitness ID:

(1) Essential third parties --- one who is furthering some purpose of the relationship (this is broad) (2) Attorney representatives --- persons hired by the attorney to assist in rendition of legal services EXAMPLE: Accountant, investigator, translator, doctor, jury consultant, secretary, stenographer. If attorney sends patient to a doctor, statements made to the doctor are not protected by the doctor-patient privilege because treatment is not being sought, but it still falls under A/C privilege

The attorney-client privilege extends to: (Question of who)

(1) Race Statute (2) Notice Statute (3) Race-Notice Statute

There are three types of recording statutes

Voluntary Waste Permissive Waste Ameliorative Waste

There are three types of waste:

Waiver may never be presumed from: a defendant's *silence alone.* However, because silence does not invoke the Miranda right, police are permitted to repeatedly ask a silent suspect for a waiver.

Waiver of Miranda Rights Defendant silence

At common law: A home where people lived, whether occupied or unoccupied at the time of entry, and also included structures on the "curtilage" such as a storage shed or greenhouse. Modern statues: include almost any structure, even if it's not a dwelling (like a warehouse)

The dwelling house of another (Burglary)

it is within her knowledge.

The judge MAY NOT take judicial notice of a fact merely because

This means that the mailbox rule only applies if the offeror is silent on the question of when acceptance will be effective. As always, the maker is the master of the offer, and thus the offeror is free to establish his own rules for effective acceptance.

The mailbox rule is a default rule

If the mentally incompetent person exercises his power of avoidance and has received some benefit under the contract, then *he is required to make the other party whole by paying the reasonable value of the goods or services rendered.* This is different from Minor rule. *EXCEPTION:* *If the other party takes unfair advantage of the mentally incompetent person, being aware of that person's incompetence*, then the other party is entitled only to a return of any benefits still in the possession of the mentally incompetent party. The other party will have no right of recovery for services or benefits already consumed.

The mentally incompetent party's duty of restitution:

Grantor is secondary liable. Grantor could pay off debt to debtor, and the grantor would be subrogated to mortgage and note. The grantor becomes the mortgagee to the grantee.

Transfers by Mortgagor - who's on the hook for mortgage? Rights of the grantor against the grantee if there has been an assumption. Subrogation:

created by statute or common law EXAMPLE: In a negligence action, if the defendant is age seven, some states have statutes that say a child aged seven or below is incapable of negligence. As a matter of law, there is an irrebuttable presumption that no matter how mature the seven-year-old is, there can be no finding of negligence.

There are some presumptions that are IRREBUTTABLE:

If you have property that is jointly owned and one of the co-tenants dies, the property passes to the surviving co-tenant automatically. If there is a tenancy in common where there is no right of survivorship, a joint interest held in a tenancy in common is freely transferable and can be willed away or inherited through intestacy.

The right of survivorship takes precedent over a will or inheritance by intestacy. What about tenancy in common?

Theft crimes are crimes that involve some taking of property from the victim by the defendant. The key to analyzing theft crimes is to examine three criteria: a. How the defendant obtained the property: trespass, delivery, or trick; b. Whether the defendant acquired custody, possession, or title to the property; and c. Whether the defendant formed the intent to permanently deprive (steal) the property An unlawful taking, with intent to temporarily deprive, is never theft.

Theft Crimes

A false representation of a present or past material fact by the defendant, which causes the victim to pass title to his property to the defendant who knows it is false and intends thereby to defraud. EXAMPLE: Terry tells a car dealer that she paid for a car, and is there to pick up the keys. The dealer signs over the title to Terry, who got title by false pretenses. Remember, if you own property before you move it, there is no trespassory taking and it cannot be larceny.

Theft by False Pretenses

The easiest way to satisfy the UCC Statute of Frauds, a signed writing requires the following to be satisfied: (1) A writing, Any intentional reduction to tangible form. A majority of courts have concluded that electronic documentation satisfies the writing requirement of the UCC. (2) Signed by the party against whom enforcement is sought, Signature under the UCC = any symbol executed or adopted by a party with present intention to authenticate a writing. Most states have adopted the UETA (Uniform Electronic Transactions Act) under which electronic signatures satisfy legal writing requirements. (3) Sufficient to indicate that a contract for sale has been made between the parties.

There are five ways to satisfy the UCC Statute of Frauds: (1) The first way: signed writing (aka the "old-fashioned way")

Part-performance occurs for: 1) delivery and acceptance of goods, or, 2) payment for goods and acceptance of payment. Thus, the partial performance exception does not apply unless there are actions by both parties indicating that a K exists. Divisible versus Indivisible Goods If the contract in question involves divisible goods: the contract is only enforceable up to the quantity actually delivered or paid for Majority -- If the contract in question involves an indivisible good then partial payment renders the contract fully enforceable. Minority -- A minority of courts refuses enforcement unless full payment has been made.

There are five ways to satisfy the UCC Statute of Frauds: (4) The fourth way to satisfy the UCC Statute of Frauds: Partial Performance (aka, "Been There, Done That")

The problematic scenario:* specially manufactured goods to specifications of a buyer who then backs out.* *Statute is satisfied where the following five elements are present:* 1) the goods are to be specially manufactured for the buyer; 2) the goods are not suitable for sale to others in the ordinary course of seller's business; 3) seller has substantially begun to manufacture, or made commitments to procure, the goods; 4) the actions undertaken to begin to manufacture or procure occurred under circumstances which reasonably indicate that the goods are for the buyer; and 5) the actions undertaken to begin to manufacture or procure occurred before seller received notice of buyer's revocation.

There are five ways to satisfy the UCC Statute of Frauds:The third way: (5) The fifth way to satisfy the UCC Statute of Frauds: The Problem of Specially Manufactured Goods (aka., "Now you tell me!")

(1) attorney-client (2) psychotherapist-patient (3) clergyman/penitent (4) husband-wife (spousal immunity and marital communication)

There are four Confidential Communication privileges recognized in federal courts and in all 50 states:

Shifting executory interest Springing executory interest

There are two types of executory interests

a. Advisory committee (notes) recommendations or b. Congress can pass laws that include rules of evidence

There are two ways Rules come into being:

(1) The Supreme Court refused to permit the government to enjoin the publication of the Pentagon Papers. (2) Confiscation by the Post Office of mailed materials determined by the Postmaster General to be "obscene" was held invalid.

There is a strong presumption against the constitutional validity of any system of prior restraint of expression.

In a typical contract, the parties promise performances to each other. If one party refuses to perform, the other has standing to bring a claim for breach because the parties are in contractual privity. In some contracts, however, one of the parties promises a performance that will benefit a third party (a third party beneficiary). The critical issue in third-party beneficiary law *the circumstances under which the third party beneficiary has standing to enforce the contract*

Third Party Beneficiaries In General

Any person who has joint control or use of shared premises may consent to a valid search and any evidence seized in plain view may be used again the other occupants. Such consent applies to: *common areas* but not to private reserved areas. Police reliance on third party consent is reasonable so long as the person granting the consent has *actual authority* over the place searched: or a reasonable officer would believe they had that authority (*apparent* authority).

Third-Party Consent

Any third-party beneficiary, other than an incidental beneficiary, has a right *to secure enforcement of the agreement from a breaching promisor*

Third-Party's Rights against the Promisor

a) if the regulation requires the property owner to suffer some permanent physical invasion; b) if the regulation deprives the property owner of all economically beneficial use to the property; or c) the government will balance the economic/physical impact, the duration and the character of the government action.

Three categories in determining whether a regulatory requirement is so onerous as to amount to a taking:

In General: A defendant must remove within 30 days of when the grounds for removal became apparent. Normally, the ground for removal will be apparent when the defendant is served with process because service will include a copy of the complaint, which will make clear whether federal question or diversity jurisdiction is available. Sometimes, however, if the plaintiff amends her complaint to add a claim, change the amount in controversy, or drop a party, removability will become clear well after service of process.

Timing Removal

Trespass to chattels arises where a defendant intentionally interferes with plaintiff's chattel, causing harm. Elements: (1) Intent (2) Interference (3) Plaintiff's chattel (4) Harm

Trespass to Chattels

Conduct giving rise to trespass to chattels - Defendant uses, borrows without authorization or damages a chattel of another in a significant enough way that we are willing to provide damages.

Trespass to Chattels Conduct

Title insurance can be purchased at the time of closing by the buyer, so that if there is a defect in the chain of title, an unexpected encumbrance (e.g., undiscovered federal income tax lien on the property), or other similar problem, the buyer can make a claim under the insurance policy. If a successful claim is filed and paid, the title company then obtains subrogation rights to bring any necessary lawsuits to reimburse itself. A title search must be performed before title insurance will be issued. The owner's policy is in the amount of the purchase price of the property. If there is a mortgage, the lender's policy is in the amount of the loan. (1) Thus, where the buyer is taking out a mortgage, two different policies must be purchased. Title insurance does not cover every possible problem. A policy must be read closely to learn what it will pay for and what is exempted. Some policies will not cover matters that cannot be found through a review of the public record.

Title Insurance

Two or more people fighting over ownership of a piece of real land. Take potential claimants in chronological order and establish their claims to the property, then take subsequent claimants and see if they can take title away via: 1) Adverse possession 2) Land-sale Contract 3) Conveyance

Titles Basic Issue and Procedure to Take

Does the Agreement Fall within the Statute of Frauds? Is the Statute of Frauds Satisfied? Is Alternative Enforcement Available?

To analyze Statute of Frauds issues, ask the following three questions in order.

(1) Provide the landlord with notice, and, (2) Allow landlord reasonable time to repair it (The time that they spend repairing it is deductible from rent)

To claim breach of implied warranty of habitability, the tenant must:

To create an implied reciprocal servitude, look for a filed declaration containing the restrictions (called CC&R's - the covenants, conditions, and restrictions). ELEMENTS: 1) Restriction must be part of a common scheme or plan for development of the area; and 2) Current owner of the servient estate must take with some sort of notice of the restriction No requirement of a writing, because it can be implied. Will work for negative restrictions only.

To create an implied reciprocal servitude

An implied reciprocal servitude is imposed on any lot that does not contain the restriction if a common scheme was evident at the time of the conveyance of those lots. The following may show a common scheme: 1) a large percentage of lots expressly burdened; 2) oral representations to buyers; 3) statements in advertisements to buyers; or 4) recorded plat maps or other declarations.

To create an implied reciprocal servitude Common Scheme

An implied reciprocal servitude can be enforced by: 1) the original grantor; 2) any purchaser affected by the common scheme; or 3) a condo or subdivision association for common land conveyed to it.

To create an implied reciprocal servitude Enforcement

To determine what is adequate notice and what is an adequate hearing, the court will balance three factors: 1) the importance of the individual interest protected; 2) the risk of an erroneous deprivation of this interest through the procedures used; (if we don't give procedural protection, are we going to make a mistake?) and 3) the government's interest in streamlined procedures (how burdensome is this on the government?)

To determine what is adequate notice and what is an adequate hearing:

SUING IN PERSONAM -- The mortgagor (borrower) can make three types of sales of land encumbered by a mortgage: a. having the buyer take "subject to the mortgage" meaning the buyer has no responsibility to pay on it; b. having the buyer "assume the mortgage" meaning the buyer becomes personally liable for it, along with the original borrower; or c. having the buyer "assume the mortgage" and enter a novation with the lender, so that the buyer, alone, is personally liable for paying the mortgage. SUING IN REM -- In each case, the mortgage remains on the land and is available if the mortgagee needs to foreclose on it.

Transfers by Mortgagor

Gives mortgagee option of requiring entire debt due and payable upon any transfer (similar encumbrances clause) if mentioned in mortgage, enforceable. Very common now, so taking "subject to" or "assuming the mortgage" is rare.

Transfers by Mortgagor - Due-on-sale clause

Look to the facts to see if they point one way or the other. If the facts are silent, default is "subject to."

Transfers by Mortgagor - If there is ambiguous language as to whether the buyer is on the hook for the mortgage:

Actual damage ORat least a dispossession that is not entirely insignificant.

Trespass to Chattels Harm

Beyond real property concerns—i.e., torts, land occupier duties owed (invitees, licensees, trespassers)—who owes duties? Not owners, possessor. During lease, tenant has possession, so tenant owes duties. Some places where landlord retains duty—common passageways in apt (stairs, hallways) under landlord control, so a duty is owed. If landlord leases premises with known defective, dangerous condition not readily apparent to tenant, landlord retains liability until tenant has had reasonable time to inspect and repair.

Tort Liability and Property Maintenance during leases

Traditionally, a joint tenancy requires the following four unities: (1) Time Joint tenants must take at the same time (2) Title Joint tenants must take by the same instrument (3) Interest Joint tenants must take equal shares of the same type (i.e., each joint tenant take a legal fee simple) (4) Possession Each joint tenant has the right to possess the whole

Traditional Creation of Joint Tenancy

a. Deed sufficient to satisfy the Statute of Frauds. b. Delivery of the deed. c. Deed must be accepted by the buyer.

Transfer by Deed There are three requirements for a valid conveyance.

If the seller dies after executing a sales contract, but before the closing, the decedent's personal representative must complete the transaction. The money received goes to the beneficiary who inherits personal property, not real estate, because money is personal property.

Transfer by Operation of Law and Will When Seller Dies before Closing

The transferred intent doctrine preserves liability where a defendant intends criminal conduct against one party but instead harms another party, so that his actions bring about an unintended, yet still criminal, result. It is not a defense that: the defendant harmed the wrong victim, as long as he had the intent to harm someone else.

Transferred intent:

Mortgagee (lender) may also transfer the note and mortgage, which travel together.

Transfers by Mortgagee - mortgage doc and note

If the creditor sues the grantor, grantor can get an EXONERATION, which is a court order compelling the grantee to pay debt.

Transfers by Mortgagor - who's on the hook for mortgage? Rights of the grantor against the grantee if there has been an assumption of the mortgage. If the debt falls into default.

The element of physical invasion is satisfied if any of the following happen -- defendant enters defendant causes a third person to enter onto plaintiff's land defendant causes a object to enter onto plaintiff's land defendant enters onto plaintiff's land lawfully but then remains when under a legal duty to leave defendant fails to remove an object from plaintiff's land when under a legal duty to do so

Trespass to Land Entry:

Because trespass to land is a tort against one's possessory interest anyone in possession of the land can bring an action

Trespass to Land Plaintiff's land:

(1) Nominal damages are recoverable. (2) Defendant is liable for all of the harm caused by the trespass (3) Restitutionary remedy of ejectment (a) Action brought by the plaintiff to have the sheriff remove the defendant from the property. (b) Having the defendant removed from the property.

Trespass to Land Remedies

a. Defendant desired to enter the land, OR b. Defendant knew that land entry is virtually certain to result from the defendant's actions c. Mistake is not a defense as to a trespass action.

Trespass to Land To establish intent, plaintiff needs to show that:

Trespass to chattels -- Intentional tort -- Committed by intentionally dispossessing or intermeddling with a chattel in the possession of another -- Defendant is liable for damage or diminished value of chattel. Conversion -- Intentional tort -- Committed by intentionally exercising dominion or control over a chattel and seriously interfering with the rights of the owner. -- Defendant is liable for the full value of the chattel at the time of the conversion.

Trespass to chattels V. Conversion

(1) Just because a plaintiff seeks damages does not guarantee that a right to trial by jury will exist. The Supreme Court has interpreted the Seventh Amendment to guarantee a jury trial only for the types of claims that would have been actionable in 1791 when the Amendment was ratified. Because times have changed, there are many suits filed today that would not have been cognizable in a common law court of 1791 regardless of the remedy sought. (2) For example, common law judges in 1791 would have laughed themselves silly if a union tried to file suit against an employer for a breach of good faith and fair dealing. What's this thing called a "union," and what does "fairness" have to do with employment, they would have asked. Does that mean there is no right to a jury in such cases? The answer depends on whether the cause of action: can be fairly analogized to a claim that would have been actionable in 1791 common law court (a) In a case involving a suit of the sort just described, the Supreme Court held that that suit was most similar to an equitable action for breach of fiduciary duty (which would not entitle the parties to a jury) but that the plaintiff's claim for damages tipped the scales in favor of making a jury available. (b) The Supreme Court's "analogy" jurisprudence in this area is so discretionary that there is little more guidance to be provided here. Do remember, however, the key concept here: if a claim, though dressed up in modern garb, is functionally similar to a claim that would have been actionable in a 1791 common law court, any party to that claim may demand a jury.

Trial by Jury - The Nature of the Claim

In 1791, so-called "common law courts" heard both common law and statutory actions, but only had the power to issue damages, not equitable relief (such as injunctions, specific performance, rescission, or reformation). Thus, the Seventh Amendment guarantees a right to a jury where monetary relief, rather than injunctive relief, is sought. If both forms of relief are sought, the right to a jury exists for any issue of fact underlying a damages claim -even if resolution of that issue may also support injunctive relief.

Trial by Jury - The Nature of the Remedy

Under the Seventh Amendment, litigants in federal court are entitled to a trial by jury in suits: (1) At common law, (2) Where the value in controversy is more than twenty dollars. Monetary, not equitable, relief only. If both $ and injunction are sought, the right to a jury exists for any issue underlying a damages claim - even if resolution of that issue may also support injunctive relief. In 1791, so-called "common law courts" heard both common law and statutory actions, but only had the power to issue damages, not equitable relief (such as injunctions, specific performance, rescission, or reformation). If a claim is functionally similar to a claim that would have been actionable in a 1791 common law court, any party to that claim may demand a jury.

Trial by Jury - The Scope of the Right

Paradoxically, absent accommodation language, the seller's shipment of nonconforming goods does two things at once: a) It accepts the offer, forming a binding contract b) It breaches the contract According to Section 2-206, the shipment of nonconforming goods constitutes both an acceptance and a simultaneous breach under the perfect tender rule. The buyer, under Section 2-601, may reject the entire delivery, accept the entire delivery, or accept part of the delivery and reject the rest. However, the buyer's right to reject nonconforming goods is subject to the seller's right to cure. To cure, the seller must notify the buyer of the intention to cure and then deliver conforming goods to the buyer. Generally, the conforming goods must be delivered within the originally contracted period for performance.

UCC - Accepting by sending non-conforming goods 1. What is the legal effect? 2. What is buyer's recourse 3. Seller's Right to Cure

Transaction Involving a Consumer - Non-conforming accceptance's additional or different terms are mere proposals for addition. They are not part of the contract unless offeror expressly agrees to them. Transaction where Both Parties are Merchants - Non-conforming acceptance is acceptance unless made conditional.

UCC -Battle of the Forms - Nonconforming acceptance between merchants vs. Nonconforming acceptance where one party is a consumer

After determining whether acceptance occurred, then must determine what the actual terms of the contract are. Critical Distinction: "Additional" versus "Different" Terms 1) "Additional" terms: those that address a new topic not addressed by the offer. 2) "Different" terms: those that purport to change the existing terms of the existing offer

UCC -Battle of the Forms - Does Nonconforming Acceptance Affect the Terms of the Contract? - Transaction where Both Parties are Merchants

The UCC also provides that a contract can create express warranties. Express warranties by the seller that the goods will conform to some standard arise whenever the seller expressly or impliedly makes them as part of the basis of the bargain in the following ways: (a) *any affirmation of fact or promise* - the car salesman feeding you lines about the car (b) *any description of the goods* - these are solid steel (c) *any sample or model* - you give someone a food sample and the actual product tastes different The seller *need not use the words "warrant" or "guarantee"* in order to create an express warranty. However a mere affirmation of the value of the goods does not create a warranty, i.e. puffing. Where an express warranty conflicts with a limitation or disclaimer, the express warranty will prevail.

UCC Default Rules for the Sales of Goods Express Warranties

Under the UCC, where there are pertinent terms missing, the following default rules will fill in those missing terms: (a) The default rule for a *missing price term* is: a reasonable price at the time established by the contract for delivery. (market price) (b) The default rule for *missing time term* (e.g., time/date of delivery or time/date for action taken under the contract) is a reasonable time. (c) The default rule for a *missing place of delivery term* is the seller's place of business. If a contract leaves the price to be fixed by one of the parties, then that party must fix the price in good faith.

UCC Default Rules for the Sales of Goods Missing Terms

(1) Warranty of Title - you really own the goods; you're legit (2) Warranty of Merchantability (3) Warranty of Fitness for a Particular Purpose

UCC Default Rules for the Sales of Goods *Implied Warranties*

The writing must afford a basis for believing that the offered oral evidence rests on a real transaction and must include a quantity term for the goods. The contract is unenforceable beyond the quantity stated in the writing. If there is no quantity term, the contract is altogether unenforceable, subject to two exceptions: (1) where other language in the writing provides an unambiguous basis for measuring quantity (2) output or requirements contracts, which satisfies the quantity requirement under the UCC. No other term is required in the writing - however, a writing can have so few terms that it will no longer be sufficient to indicate that a contract for sale has been made between the parties. A written offer is not a writing sufficient to indicate a contract for sale has been made (this is contrary to the common law rule, where a written offer suffices). EXCEPTION -- But if the requirements of the UCC "Firm Offer" rule are met: then this writing is fully enforceable against the one making the "Firm Offer".

UCC Statute of Frauds Writing sufficient to indicate that a contract for sale has been made between the parties

Valid acceptance may occur through: 1. Seller's promise to ship goods in conformity with the terms of the offer EXAMPLE - An acknowledgment of order form sent to the buyer 2. Seller's prompt or current shipment of the goods in conformity with the terms of the offer 3. Seller's shipment of non-conforming goods EXCEPTION If the seller sends non-conforming shipment "as an accommodation" it constitutes a counteroffer.

Under UCC, if a buyer asks for prompt or current shipment of goods, how might a seller validly accept?

(a) a letter from one of the parties to a third party describing the agreement (b) the written offer, acceptance of which formed the contract (c) a letter from one of the parties repudiating, and so admitting, the agreement

Under common law, the following memoranda have been held to satisfy the writing requirement of the Statute of Frauds:

(1) By appeal (where jurisdiction is mandatory); and (2) By writ of certiorari (discretionary review where four or more justices vote to hear the case). Grounds for certiorari include: (1) Cases involving conflicts between different federal courts of appeal; (2) Cases involving conflicts between the highest courts of two states; (3) Cases involving conflicts between the highest state court and a federal court of appeals; or (4) Cases from state courts or U.S. courts of appeal involving important, yet unresolved, issues.

Under federal law, there are two methods for invoking Supreme Court appellate jurisdiction:

*Element #1: Unfair persuasion is used* (a) discussion of the transaction at an *unusual or inappropriate time*, (b) consummation of the transaction at an *unusual place*, (c) insistent demands that the transaction or business be *finished immediately*, (d) extreme *emphasis on the untoward consequences of delaying* the transaction, (e) the use of *multiple persuaders* against the target of persuasion, (f) *absence of third-party advisors* to the target of persuasion, (g) statements that there is *no time to consult* financial advisors or attorneys. *Element #2: The other party was vulnerable to such persuasion* (a) Where party is mentally infirmity due to age or illness (b) Where the vulnerability is due to some recent trauma or event (c) Where there is a relationship of trust or confidence

Undue Influence

The Rule Against Perpetuities can void a future interest. Generally does not apply to vested interest except for vested remainders subject to open. If any member of a class could potentially claim in a way that would violate the Rule Against Perpetuities, it will knock out the entire class gift.

Vested Remainder - Class Closing / Rule Against Perpetuities

Offeror makes a promise and seeks a performance in exchange. An offer seeking performance in return is an offer to enter into a unilateral contract. Offeror may not revoke offer once offeree begins performance. Mere preparations do not constitute beginning performance. Under a unilateral contract: (1) the offeror is bound to the contract only when the offeree completes performance in accordance with the terms of the offer; and NOTE - The maker of an offer to enter a unilateral contract is free to make communication of acceptance a part of the required performance (2) the offeree is never bound to perform because he has never promised to perform - the offeree is free to abandon the performance at any time. The mailbox rule does not apply to unilateral contracts (offeror may revoke the offer even if the offeree has placed acceptance in the mail).

Unilateral Contract

A unilateral mistake occurs where a single party operates under a faulty assumption about one or more material facts as they exist at the time of contracting. The mistaken party may be excused from the contract if: (1) the other knew party or had reason to know of the party's mistake, or, (2) the mistake is the result of a serious clerical error However, the mistaken party will still not be excused if: i) the error was caused by extreme negligence on the part of the party making the error; or ii) the other party relied on the clerical error.

Unilateral Mistake

The law of venue dictates the region (judicial district) within a particular state where a suit can occur. The appropriate venue can be dictated by either: (1) The residency of the defendants (2) The location of the events giving rise to the suit.

Venue (28 U.S.C. § 1391)

Sometimes the most convenient court in which to litigate a suit is not in the United States. In these circumstances, the federal court cannot transfer the suit; the court can only dismiss the suit without prejudice so that the plaintiff may refile the suit abroad if she desires. Although forum non conveniens appears to be a venue concept, dismissals based on this doctrine are actually dismissals for lack of subject matter jurisdiction. The factors courts will consider in dismissing for forum non conveniens are the same as those considered in transfer. Thus, the key difference between transfer for convenience and forum non conveniens is the judicial response to the inconvenience. In the venue transfer, the court moves the case to a new place, and, in the forum non conveniens, the court dismisses the suit so that the plaintiff can move the case to a new place. Finally, note that the court, in dismissing a case under forum non conveniens, will often condition the dismissal on the defendant waiving any future challenges (should the case be re-filed in a different country) to statute of limitations or other similar defenses.

Venue (28 U.S.C. § 1391) Forum Non Conveniens

Where all defendants reside in the same state, the plaintiff may lay venue in the judicial district where any single defendant resides. If the defendants reside in multiple states, must use location of the harm. The residency of human defendants is straightforward. Such defendants reside where they are domiciled, or more simply, where they live. All other defendants (whether corporations, unincorporated associations, partnerships, etc.) reside in every district in which they are subject to personal jurisdiction for that district. (Must go thru personal jurisdiction analysis)

Venue (28 U.S.C. § 1391) Residency

If all parties join in a request to transfer a case to a particular venue, the court may transfer the case to that venue, even if PJ and venue would otherwise be lacking (parties are all waiving their objections). By joining in a request for a transfer, the defendants have essentially consented to PJ and venue. Importantly, if all parties join in a request, the court need not determine that the current venue is inconvenient.

Venue (28 U.S.C. § 1391) Transferring Venue thru Agreement

Sometimes, after a lawsuit has been filed in a particular venue, there are reasons that it should be transferred to a new venue. These reasons include the following: (1) Convenience (2) Agreement (3) Interest of Justice

Venue (28 U.S.C. § 1391) Transferring Venues

A court may transfer a case to a different federal venue if (1) the case could have been filed there in the first place (taking account of SMJ, PJ, and venue), and (2) the transfer is necessary for the convenience of the parties and/or witnesses. Note that transfer is a tool for moving a case within the federal courts; federal courts cannot transfer cases to other court systems (like state court or foreign courts).

Venue (28 U.S.C. § 1391) Transferring Venues b/c of Convenience

A remainder is vested at the point that it is: (a) Created in an ascertainable person (b) With no condition precedent, other than the natural termination of the preceding possessory estate EXAMPLE: "A to B for life, then to C." C has a vested remainder because C is an ascertainable person and there is no condition precedent to his taking other than the termination of the preceding estate (when B dies). Types: A vested remainder subject to total divestment A vested remainder subject to open

Vested Remainder

A class closes as soon as one member of the class becomes entitled to immediate possession of the property.

Vested Remainder - Class Closing / Rule of Convenience

Inter vivos conveyance: class opens at the time of the conveyance (when you show an intent to convey during your life) Testamentary conveyance: class opens at the death of the testator EXAMPLE: "A to B for life, then to the children of C." If inter vivos: class opens at the time of the conveyance, and any child of C is part of the class and has a vested interest. If child of C dies, vested interest will pass by intestacy or will of the child. If in A's will: At time of the will, C had child D. If D dies before A, D is out of the class because he predeceased the opening of the class.

Vested Remainder - Class Opening

Generally, parties to a contract are free to modify or rescind the contract by mutual consent. Consequently, the parties may modify or rescind a provision that benefits a third party without their consent. EXCEPTION - Third party's rights have vested. Vesting occurs where the beneficiary: (1) Brings suit on the contract (2) Changes their position in justifiable reliance on the contract (3) Manifests assent to the contract (either in response to the promisor or the promisee) (4) Rights have vested under the express terms of the contract.

Vesting of the Right to Sue

1. Employer/Employee (Respondeat Superior) 2. Independent Contractor 3. Parent/Child

Vicarious Liability

A voluntary dismissal is appropriate where a plaintiff wishes to stop litigating their claim. This may occur if it's too expensive, it has no merit, or a settlement is reached with the defendant. OPTIONS: (1) Before the defendant has filed an answer or motion for summary judgment: claimant may unilaterally dismiss their suit; (2) Claimant may file a stipulation of dismissal signed by all parties; (3) Claimant may dismiss with the permission of the court If the defendant has filed a counterclaim, the court will not grant permission unless the counterclaim can remain pending for independent adjudication.

Voluntary Dismissals

Voluntary manslaughter is an intended killing which lacks malice. A killing may lack malice if it was brought on by the heat of passion, diminished capacity, mistaken justification, or an imperfect self-defense. A minority of states allow diminished capacity short of insanity to reduce murder to manslaughter. In many states, an honest but unreasonable judgment of homicidal self-defense eliminates malice and drops a murder to manslaughter

Voluntary Manslaughter

Anyone who owns less than a fee simple cannot intentionally or negligently damage the property. If they do, they are liable for the damage to future holders of the property.

Voluntary Waste

If a party wishes to defend the action against him on any of the grounds below, and he files a motion to dismiss, he must include the defenses in the motion or else forfeit them. (Note that if a party files an answer instead of a motion to dismiss, these defenses must also be raised in that pleading or else are forfeited.) (a) Lack of personal jurisdiction (b) Improper venue (c) Insufficient process (d) Insufficient service of process

Waiver - Use 'em or Lose 'em: In the First Response

(a) Failure to assert a privilege in a timely manner: usually results in a waiver (b) Waiver of a privilege generally operates as a partial waiver. The privilege is waived only to the extent to permit reasonable scrutiny by the opposing party (c) A blanket or total waiver results ONLY IF: 1) the waiver was intentional, and 2) both the disclosed and undisclosed information concerns the same subject matter

Waiver of Attorney-Client Privilege (Rule 502)

The federal rules require certain defenses to be raised at certain times. If they are not raised at that time, the party possessing the defense waives the right to raise it. These defenses might thus be called "use 'em or lose 'em" defenses, meaning that if the defending party makes a motion to dismiss, but does not include the defense, the party forfeits the defense. Note that if a party does not file a motion to dismiss but instead files an answer, the defense must be raised in that pleading or else it is waived.

Waiver of Defenses

In order to neutralize the inherent coercion of custodial interrogation, the prosecution must prove the suspect executed a knowing and voluntary waiver of Miranda. The waiver must indicate the suspect *understood* the rights, and engaged in a course of conduct indicating a *voluntary* waiver: This is normally established by having the suspect state orally or in writing she understands the rights and is willing to answer questions without a lawyer; The waiver need not be in writing, but *the prosecution must prove the suspect acknowledged her understanding of the rights.* Understanding may be established by the suspect remaining silent for several hours after the warning and then talking (shows you knew you could be silent) The defendant need not be warned of: the charges against him or what the police suspect. A valid Miranda waiver is strong evidence that the subsequent confession is actually voluntary, although it is possible to comply with Miranda and still violate the due process voluntariness test.

Waiver of Miranda Rights

a. A valid warrant to search or seize must be issued by a neutral and detached magistrate, based on *probable cause*, and describe with particularity the thing to be seized or the place to be searched. (1) The information (affidavit) presented to the magistrate must provide relevant facts that lead to the conclusion that: there is a *fair probability* that a person committed a crime for an arrest or evidence will be found in a certain location. (2) The information presented to the magistrate must not be *stale*. Can't get a warrant based on information from 2 months ago, it's too old.

Warrant Procedure

A warrantless search is unreasonable unless it falls within one of the following established exceptions. Searches Incident to a Lawful Arrest (SITLA) Automobile Exception Special Needs Searches Borders Searches Consent Searches Administrative Searches Hot Pursuit

Warrantless Searches: Exceptions to the Warrant Requirement

Present Covenants (1) Seisin (2) Right to convey (3) Covenant against encumbrances Future Covenants (4) Quiet enjoyment (5) Warranty (6) Further assurances A warranty deed allows the buyer to sue through one of the covenants of title contained in the deed. GENERAL WARRANTY: contains all six covenants of title that cover all of the period prior to the seller selling to the buyer. Seller warrants that there are no defects in the chain of title. SPECIAL WARRANTY: may contain some or all of the covenants. May limit liability only to period of grantor's ownership of the land - NOT vouching for predecessors in title Seller warrants that no title defects have occurred during his ownership.

Warranty deed:

Goods being sold are fit for the particular purpose for which the buyer intends to use them. The warranty only applies where, at the time of contracting, the seller has good reason to know: 1) the particular purpose for which the goods are required, and, 2) that the buyer is relying on the seller's skill or judgment to select or furnish reasonable goods. The warranty may be negated: 1) when the disclaimer is in writing, clear and conspicuous; OR 2) when the goods have patent defects which were easily detectable. i.e. you buy the lotion and it says "do not use in temperatures over 70 degrees"

Warranty of Fitness for a Particular Purpose

(1) Where a merchant deals in goods of a particular kind, sale of such goods constitutes an implied warranty that those goods will be merchantable, that is, they are of average quality for goods of that kind and generally fit for the purpose for which such goods are normally used. (2) There are privity and notice requirements. (3) Can be disclaimed.

Warranty of Merchantability

Under the UCC, warranty of merchantability is a default provision which provides that the goods are fit for the ordinary purposes for which those goods are used. The warranty only applies if the seller is a merchant. The warranty of merchantability will be displaced by: 1) specific mention of the word "merchantability" and conspicuousness if in writing (bold font or something); or 2) any other language or circumstances that would be reasonably understood by a buyer to exclude that warranty (e.g., "as is" or patent defects).

Warranty of Merchantability

Under the UCC, warranty of title is a default provision which provides for: 1) good title to the goods - seller really owns goods before transfer 2) the rightful transfer of the goods - seller is not breaking any agreements by selling these goods 3) no liens are attached to those goods (security interests, judgments, tax liens, etc.). This warranty can only be excluded or modified by: 1) specific language ("there's no warranties"); or 2) circumstances which give the buyer reason to know that the seller does not claim unencumbered title. (i.e. fire sale) Limitation -- A seller is not liable for such a claim if the buyer provides specifications to the seller and the claim arises out of compliance with the specifications.

Warranty of Title

1. Riparian View (Majority) 2. Prior Appropriation/Use View (Minority) 3. Diffuse Surface Water

Water Rights

Several rules have developed over time: (1) Common enemy rule (eastern states) means flood water can be diverted by any method onto another's land. (2) Civil law rule (western states) means no interference with any surface water. (3) Reasonable use rule means surface water can be diverted onto another's land if using reasonable means to do so.

Water Rights Diffuse Surface Water Common enemy/Civil law/Reasonable use rule

Awards the right to use water to the first person to take water for beneficial purposes. This is the rule for many Western states.

Water Rights Prior Appropriation/Use View (Minority)

Anyone who is within the watershed (touches the lake or stream) has a right to make reasonable use of the water. This is the rule for many Eastern states. EXAMPLE: Someone upstream is taking water and someone downstream objects. So long as they are taking a reasonable amount, it is okay. If it is unreasonable, the person downstream can sue for an injunction or damages.

Water Rights Riparian View (Majority)

Covenants and equitable servitudes can be terminated by: (1) A written release (2) Merger of the dominant and servient estates (they come back into common ownership) (3) Abandonment (no one does the covenant) (4) Estoppel (look for reasonable reliance and economic damages) (5) Changed circumstance so that the reason behind the restriction is no longer valid.

Ways to Terminate a Covenant or Equitable Servitude

1. Federal question 2. Diversity 3. Supplemental 4. Removal

Ways to get into federal court

(a) Majority rule: clear and conspicuous language that tracks the language of 2-207 will be treated as a conditional acceptance. Quote the statute, and voila, it's a conditional acceptance (b) Minority rule: the response must clearly communicate that that offeree is unwilling to proceed unless the offeror agrees to the new terms. Tracking the language isn't enough.

What Constitutes a Conditional Acceptance? i.e., words required

Assault, battery, false imprisonment, and trespass to land or to chattels

What does transferred intent apply to?

The requesting party can immediately seek sanctions and need not start with a motion to compel. Sanctions may include: (1) A court order declaring that the facts sought are established in favor of the requesting party, (2) A court order prohibiting the disobedient party from presenting certain claims or defenses, or, (3) A stay or dismissal of the entire action. Cannot order contempt because contempt orders can only be used where a party has violated a court order.

What happens if a discovery request or subpoena is presented and the recipient simply ignores it?

An assertion with is inconsistent with existing facts *What would be sufficient to prove this element?* a) Oral or written misrepresentations b) Fraudulent conduct such as concealment c) A half-truth *Misrepresentations are not:* a) Broken promises, but rather only misstatements of existing fact b) Opinions or guesses EXCEPTION -- Professional opinions are treated as representations of facts about the matter

What is a misrepresentation?

Where both parties are merchants, non-conforming acceptance operates as an effective acceptance where forms are used. Exception: Conditional Acceptance: Acceptance is expressly made conditional on assent to additional or different terms TERMS: 1) "Dickered" Terms - material terms of the contract Examples - the particular goods to be sold, the quantities of the goods, the price of the goods 2) "Boilerplate" Terms - standard terms of the contract; fine print

What is generally the battle of the forms under the UCC? What are the two words used to describe contract terms under UCC contracts?

What would count as unreasonable reliance? EXAMPLES: 1. Aggrieved party had independent knowledge or reason to know that the statement in question was false - SUBJECTIVE 2. Aggrieved party has reason to believe that the statement was made by a person who is unreliable. 3. No reasonable person would have believed the assertion - OBJECTIVE 4. Aggrieved party could have easily ascertained the truth by cursory inspection of the goods.

What is unreasonable reliance on a misrepresentation, such that a party wouldn't be entitled to relief?

The felony must be either listed in the murder statute, or be both independent of the killing (collateral to the felony), and inherently dangerous. If the primary felonious purpose of the felony is serious physical harm, the felony is not independent and fails the collateral felony test. Felonies that fail this test include manslaughter, aggravated battery, aggravated assault, and mayhem.

What type of felony for felony-murder?

1. OPRAH. a. O: Original writing rule = Best Evidence Rule (we will cover in 1002) b. P: Privilege - is the document privileged? (501) c. R: Relevancy - Rule 401 - 403 d. A: Authentication - is the writing genuine? (901- 902) e. H: Hearsay - do any hearsay problems exist? (801 - 805)

When analyzing writings, the issues the proponent must overcome regarding admissibility are included in the following mnemonic:

A defendant has minimum contacts with a particular state if he causes harm in the state, does business in the state, or has an interest in real property in the state. His contact has to be purposefully established in a way that would put them on notice that they might be subject to legal proceedings.

When has a defendant established a minimum contact with the forum state?

a) The parol evidence rule is also inapplicable where a party to a written agreement alleges facts entitling him to reformation of the agreement. A plaintiff seeking reformation must show through clear and convincing evidence that: i) that there was an antecedent valid agreement, and, ii) this antecedent agreement is incorrectly reflected in the writing, because of mistake or fraud

When the Parol Evidence Rule Will Not Apply Collateral Agreements Attack on the Validity of the Written Agreement Reformation

The parol evidence rule will not affect agreements between the parties that are entirely distinct from the written agreement of the contract at issue.

When the Parol Evidence Rule Will Not Apply Collateral Agreements

The parol evidence rule only applies if there's a valid written agreement. As a result, the parol evidence rule will not bar efforts to prove that the written agreement is invalid or unenforceable. A party can assert such a claim in one of the following ways: 1) Failure of an Oral Condition Precedent to the Agreement Evidence that the parties orally agreed to a condition precedent to the contract taking effect is admissible. 2) Absence of Consideration Evidence that a written agreement lacks consideration or that there was a false recital of consideration is not barred. 3) Mistake or Duress Evidence of mistake or duress is not barred by the Parol Evidence Rule. 4) Fraud 5) Reformation

When the Parol Evidence Rule Will Not Apply Collateral Agreements Attack on the Validity of the Written Agreement

a) The majority rule is: Parol evidence of fraud is always admissible b) The minority rule is: Parol evidence is admissible unless the contract provides that "the parties made no representations and relied on no representations during the course of making this agreement."

When the Parol Evidence Rule Will Not Apply Collateral Agreements Attack on the Validity of the Written Agreement Fraud

1) Where the police *lies or misleads* the magistrate. A lie by one officer is imputed to every officer in the chain. 2) Where the warrant is so *facially defective* no reasonable officer would trust it. 3) Where a reasonable officer would know that the magistrate is *not neutral* and detached.

When would a reasonable officer not have relied on an invalid warrant?

Under Section 2-207, terms that materially alter the contract are those that would result in surprise or hardship if incorporated without the express awareness of the other party. EXAMPLES: i) a clause negating standard warranties, such as that of merchantability or fitness for a particular purpose in circumstances in which either warranty normally attaches; ii) clauses that materially shorten the deadline for raising complaints; and iii) clauses that change usages of trade or past courses of dealing.

When would additional contractual terms materially alter the contract?

*Buying unique objects* For example: works of art, precious heirlooms *Real property* contracts b/c real property is unique. Courts consider the following factors: (1) whether the aggrieved party has clean hands (2) whether the contract terms are fair and sufficiently definite (3) whether performance by the aggrieved party can be reasonably assured (4) whether specific performance would be in the public interest

Where Specific Performance Is Generally Available

*Contracts for personal services* - b/c this is involuntary servitude *Contracts requiring ongoing cooperation between the parties* otherwise the court would require ongoing oversight of the arrangement. Needs to be quick and dirty.

Where Specific Performance is not Available

The substance of the evidence was apparent from the context

Where a ruling excludes evidence, an offer of proof is required, unless:

Where state criminal proceedings are pending, the federal court will abstain in a suit seeking an injunction against the state prosecution, unless there's a showing of bad-faith harassment on the part of the state prosecutors. This principle has been extended to cases: (1) where state civil proceedings had commenced; and (2) where civil contempt hearings had begun.

Where state criminal proceedings are pending, the federal court will abstain in a suit seeking an injunction against the state prosecution, unless

Against the states, the 14th Amendment Due Process Clause should be invoked.

Which Constitutional Provision Should Be Relied On? (OL V. A.) Against the state government

Judge determines the admissibility; jury assigns the weight. Standard used: POTE—preponderance of the evidence standard These decisions are final and binding on the jury. A judge is NOT bound by the rules of evidence when determining preliminary facts, except with regard to privileges.

Who determines admissibility What is the standard

A defendant has standing if he has a possessory interest in the place searched or the thing seized. Passengers in a car being searched do not have standing to complain about the search of the car. Different if a car is being "seized" through a stop - an unreasonable seizure of a car = an unreasonable seizure of all occupants. (This could create a poisonous tree which ruins any search of the car). A defendant who is an overnight guest in another's home has standing to challenge the search of the home. Short-term commercial visitors and non-overnight social guests do not have standing.

Who has standing, generally, for searches and seizures challenges? Car passengers Guests in home

The term "willfully" encompasses the concepts of "intentionally" and "purposefully" as opposed to accidentally or negligently and has been used to imply evil purpose in crimes involving moral turpitude.

Willful

Burglary requires that the breaking and entering be accompanied by a simulatenous specific intent Forming the intent after the entering is not burglary However, it is possible to "break" into a room once inside a structure, and doing so with intent to commit a felony in the room is burglary.

With the intent to commit larceny or a felony therein (Burglary)

The presiding judge may not testify in that trial as a witness. This is a broad rule of incompetency to preserve impartiality and avoid confusing the jury Objections: The objection is automatic and need not be made as far as the competency of the judge - it's plain error

Witnesses Competency of Judge as Witness (Rule 605)

A juror MAY NOT testify as a witness before the jury of which he is a member.

Witnesses Competency of Juror as Witness (Rule 606(a))

Every person is competent to be a witness. Special witness examples to watch out for on the MBE (1) Child witness: No particular age required. (2) Attorney as witness. (3) Alcoholic/drug addict (4) Presiding judge as witness. (a) All of these can testify, EXCEPT The judge.

Witnesses General Rule of Competency (Rule 601)

An interpreter is qualified the same way as an expert witness, and must take an oath or affirmation

Witnesses Interpreters (Rule 604)

(1) Lay witness MUST have personal knowledge (2) Expert witness personal knowledge is not required

Witnesses Lack of Personal Knowledge (Rule 602)

A witness must declare to testify truthfully by oath or affirmation "in a form calculated to awaken his conscience." If a witness refuses to take an oath for religious reasons, or an affirmation, the judge shall NOT allow witness testimony.

Witnesses Oath or Affirmation (Rule 603)

Common Law: the following words were needed to create a fee simple absolute. O conveys "to A and his heirs." Modern Law: a fee simple absolute is generally presumed when the words "to A" are used. Do not need "and his heirs".

Words needed to create a fee simple absolute

(1) The right to cure (2) Reasonable grounds to believe delivery was acceptance

Work-Arounds for Breaching Sellers

A seller may prove that he had reasonable grounds to believe that the buyer would accept nonconformity if he has evidence of: i) express assurances to that effect from the buyer; or ii) trade usage, course of dealing or course of performance evidence to that effect.

Work-Arounds for Breaching Sellers Proof of Reasonable Grounds by Seller

If the seller makes a non-conforming delivery and had reasonable grounds to believe delivery would be acceptance to the buyer, he may substitute a conforming delivery if: i) Seller must give buyer seasonable notice of his intention to cure. ii) Seller must make conforming delivery within a reasonable time.

Work-Arounds for Breaching Sellers Reasonable Grounds to Believe Delivery Was Acceptable

1. Isolate the statement. Look for words like told, said, yelled, exclaimed, screamed. 2. Determine who is the declarant of the statement. 3. Ask if there is an assertion. 4. Determine: purpose for which the evidence is being offered a. If for its truth, apply hearsay exception or exemption (go to step 5). b. If NOT for its truth, NOT hearsay. (1) To impeach; (2) Verbal acts; (3) Effect on the listener. Apply the hearsay exceptions/exemption

Wrap Up: Analysis of Hearsay Issues, Hearsay Approach

A. Malicious Prosecution B. Wrongful Institution of Civil Proceedings C. Abuse of Process

Wrongful Institution of Legal Proceedings

Four elements: 1. A misrepresentation. 2. Scienter. 3. Materiality of the misrepresentation. 4. Reasonable reliance on the misrepresentation.

a. Fraudulent Misrepresentation

(c) Eavesdroppers: Unknown eavesdroppers DO NOT destroy the privilege. However: a known or anticipated eavesdropper DESTROYS the privilege

attorney-client privilege Eavesdropper

if the prosecution fails to disclose favorable evidence, a defendant is entitled to a new trial (or sentencing) if that evidence was also material. (a) Material means: that the evidence would have created a reasonable probability of a different outcome. (b) In other words, had it been disclosed it would have created reasonable doubt.

if the prosecution fails to disclose favorable evidence,