Slam Dunk The Bar Part 2

Criminal Defense - Prevention of Crimes

Anyone can use deadly force to prevent the commission of a serious felony involving a risk to human life, and may use nondeadly force to prevent the commission of a felony or a breach-of-the-peace misdemeanor. A private citizen who makes a mistake, even a reasonable mistake, as to the commission of a serious felony by the victim is not entitled to rely on this defense.

Estoppel Against Collateral Attack on Divorce Judgment

Anyone who has an interest in a case may collaterally attack the validity of another state's decrees. However, when the third party is in privity with one of the parties to the divorce, the third party may be estopped from making an attack based on that party's relationship to the initial proceedings. The spouse who brought the proceeding in the original court is estopped from challenging its validity.

Fundamental change - transferor's continued responsibility

Apart from an agreement with a creditor that releases the transferor corporation from liability, the transferor corporation remains liable for its debts, including those associated with the transferred assets. The transferor may be able to obtain indemnification from the transferee for such liability.

Legislation impairing obligation of contracts

Article I, Section 10 prohibits the states from passing any law "impairing the obligation of contracts." This prohibition applies only to state legislation—not state-court decisions and not federal legislation—that retroactively impairs contractual rights. It does not apply to contracts not yet entered into.

Direct tax - apportionment

Article I, Section 2 provides that "[r]epresentatives and direct taxes shall be apportioned among the several states," and Article I, Section 9 provides that "no...direct tax shall be laid, unless in proportion to the Census...." A direct tax (one imposed directly on property or persons, such as an ad valorem property tax) would therefore have to be apportioned evenly among the states. The difficulty of ensuring this outcome explains Congress's reluctance to enact such taxes—or perhaps the Supreme Court's reluctance to find that federal taxes are "direct." The Sixteenth Amendment gave Congress the power to lay and collect income tax without apportionment among the states.

War and Defense Powers

Article I, Section 8 gives Congress the power to declare war, raise and support armies, provide and maintain a navy, make rules for governing and regulating the land and naval forces, and provide for the organizing of a militia.

Commerce Clause

Article I, Section 8, Clause 3 of the Constitution, known as the Commerce Clause, empowers Congress "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The term "commerce" has been defined to include essentially all activity—including transportation, traffic, or transmission of gas, electricity, radio, TV, mail, and telegraph—involving or affecting two or more states.

Article III Scope

Article III, Section 2 delineates the jurisdiction of federal courts as limited to cases or controversies: i) Arising under the Constitution, laws, and treaties of the United States; ii) Affecting foreign countries' ambassadors, public ministers, and consuls; iii) Involving admiralty and maritime jurisdiction; iv) When the United States is a party; v) Between two or more states, or between a state and citizens of another state; vi) Between citizens of different states or between citizens of the same state claiming lands under grants of different states; or vii) Between a state, or its citizens, and foreign states, citizens, or subjects.

Article IV

Article IV, Section 2, known as the Comity Clause, provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

Criminal Assault - consent

As is the case with battery, consent may be a defense to assault.

Aggravated Assault

Assault may carry a greater penalty, by statute, when a deadly weapon is used.

Rape - exclusion of husband

At common law, a husband could not rape his wife. Most states have either abolished this restriction or removed the immunity if the husband and wife have separated or filed for divorce.

Doctrine of Advancements under Common Law

At common law, any lifetime gift to a child was presumed to be an advancement of that child's intestate share and was binding on those who would have succeeded to the child's estate had the child predeceased the decedent.

Half-bloods

At common law, relatives who shared only one common parent were not entitled to inherit from or through one another. The UPC and the majority of jurisdictions have abolished the distinction between whole- and half-blooded relatives. Unif. Probate Code § 2-107.

Removal of director from board

At common law, shareholders had the inherent power to remove a director. However, because directors were deemed to have an entitlement to their offices, they could be removed only for cause based on substantial grounds (such as breach of fiduciary duty, fraud, criminal conduct, etc.). The current trend in most states and the RMBCA is to allow shareholders to remove a director with or without cause, unless the articles of incorporation provide otherwise.

Subornation of Perjury

At common law, subornation of perjury was a separate offense committed when one persuaded or induced another to commit perjury. Some states have eliminated subornation of perjury from the perjury statute.

Restrictions on Board of Directors Committees

A committee may not: i) Declare distributions, except within limits set by the board; ii) Recommend actions that require shareholder approval; iii) Fill vacancies on the board or its committees; or iv) Adopt, amend, or repeal bylaws.

Prohibited director indemnification

A corporation is prohibited from indemnifying a director against liability because of the receipt of an improper personal benefit. RMBCA §8.51(d)(2).

Voluntary corporate dissolution after issuance of stock

A corporation that has issued stock may voluntarily dissolve if (i) the board of directors adopts a proposal for the dissolution of the corporation and (ii) the majority of shareholders approve. RMBCA §14.02.

Larceny intent to pay

A defendant's intent to pay for property is not sufficient to prevent larceny when the property is not offered for sale.

Plea - pressure to bargain

A defendant's plea made in response to the prosecution's threat to bring more serious charges does not violate the protection of the Due Process Clause against prosecutorial vindictiveness, at least when the prosecution has probable cause to believe that the defendant has committed the crimes. Bordenkircher v. Hayes, 434 U.S. 357 (1978). Similarly, the bringing of felony charges against a defendant after the defendant asserted his right to a jury trial for misdemeanor offenses related to the same incident does not in itself constitute prosecutorial vindictiveness. United States v. Goodwin, 457 U.S. 368 (1982).

Board of directors conflict of interest

A director is not protected by the business judgment rule if he has a personal interest in the outcome of a corporate action.

Dissociated partner's management rights

A dissociated partner generally does not have the right to participate in the management or conduct of the partnership business. RUPA 603(b).

LP form of contribution

A general or limited partner may contribute cash, property or services. A partner may also contribute a promise to pay cash (e.g., a promissory note), to provide property, or to perform services. RULPA 501.

Due Process Rational Basis

A law meets the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny and generally results in the law being upheld.

Ordinary partnership business

A majority of the partners can make a decision as to a matter in the ordinary course of the partnership's business, such as a distribution of partnership profits. RUPA 401(j).

Past recollection recorded

A memorandum or record about a matter that a witness once had knowledge of but now has insufficient recollection of to testify to it may be admissible under a hearsay exception (see § VII.B.5. Recorded Recollection, infra). Although the record may be read into evidence, it is received as an exhibit only if offered by an adverse party.

Special Power of Appointment - Nonexclusive

A nonexclusive special power of appointment allows the donee to exercise the power to appoint among a class of individuals (e.g., grandchildren). It is nonexclusive because the donee cannot exclude a member of the class; he must appoint an equitable share to all appointees to prevent favoring one or two appointees over all others. When the donee fails to exercise the power, and when no gift in default of appointment is provided for in the will, the court will imply a gift to the objects of the special power and direct a distribution.

Nonpublic forum

A nonpublic forum is essentially all public property that is not a traditional or designated public forum. Examples include government offices, schools, jails, and military bases. Sidewalks on postal service property and airport terminals are also considered nonpublic forums. The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest. Note that a governmental fundraising campaign is a nonpublic forum for the expression of speech. The decision to exclude some charities (but not others) cannot be made because the government disagrees with a particular organization's political views; such a decision must be ideologically neutral. Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788 (1985).

Partnership distributions

A partner cannot demand a distribution of partnership profits, but she is entitled to have her partnership account credited with a share of the profits. RUPA 401(a). Even when a distribution is made, a partner cannot demand that specific partnership property be distributed to her. Conversely, a partner cannot be forced to accept a distribution in kind. RUPA 402.

Partner's Partnership Interest

A partner has a partnership interest, which consists of the rights to share in the partnership's profits and losses and to receive distributions. This interest is personal property, regardless of the nature of the partnership's assets. RUPA 502.

Transfer of titled partnership property

A partner has authority to transfer titled partnership property in some circumstances.

Partner's power to dissociate

A partner has the power to dissociate from the partnership at any time, even if the dissociation is wrongful. RUPA 602(a).

Partner's power to bind the partnership as an agent

A partner is an agent of the partnership for the purpose of its business and can contractually bind the partnership when the partner acts with either actual or apparent authority. RUPA 301(1).

Remuneration for services for partnership

A partner is not entitled to remuneration for services performed for the partnership. An exception exists when the partner renders services in winding up the business of the partnership, in which case the partner is entitled to reasonable compensation. RUPA 401(h).

Partner duty of care

A partner is required to refrain from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of the law. RUPA 404(c). A partnership agreement may not reduce this duty unreasonably. RUPA103(b)(4).

Partner accounting

A partner may seek an accounting as to the partnership business at any time.

Partner fiduciary duties

A partner owes the partnership and the other partners two fiduciary duties—the duty of loyalty and the duty of care. RUPA 404(a).

Effect of partner dissociation

A partner's dissociation does not automatically cause the dissolution of the partnership and the winding up of its business. However, it does have a variety of consequences for both the partner and the partnership.

Loan by a partner

A partner, in addition to contributing to the partnership (which becomes part of the partnership's capital), may make a loan to the partnership. The lending partner is treated as any other creditor of the partnership, subject to other applicable laws. RUPA 404(f).

LLP agreement

A partnership agreement cannot vary the law applicable to LLPs. RUPA103(b)(9).

Written limitation of partnership loyalty

A partnership agreement may not eliminate the duty of loyalty. However, the agreement may identify specific types or categories of activities that do not violate this duty, if not manifestly unreasonable. For example, a real estate partnership agreement could permit a partner to retain commissions on partnership property bought and sold. RUPA103(b)(3)(i), inc. cmt. 4.

Dissolution of partnership at will

A partnership at will is an open-ended partnership that does not have a fixed termination based on a period of time or particular undertaking. RUPA 101(8). It is dissolved when a partner chooses to dissociate from the partnership by giving notice of her withdrawal. RUPA 801(1).

Shelter rule for subsequent transferees of partnership property

A partnership cannot recover partnership property transferred by a partner without authority from a subsequent transferee if the partnership could not recover the property from any earlier transferee. RUPA 302(c).

Partnership

A partnership is an association of two or more persons to carry on a for-profit business as co-owners. RUPA 101(6).

Effect of partner's tortious acts

A partnership is liable for a partner's tortious acts, including fraud, committed in the ordinary course of the partnership business or with partnership authority, whether actual or apparent. When the partner enjoys immunity from liability for such acts, the partnership is not entitled to assert that immunity. RUPA 305, inc. cmts.

Partnership criminal liability

A partnership may be convicted of a crime for which the penalty is a fine levied on partnership assets. However, mere membership in a partnership is not sufficient to make a partner criminally liable for the acts of another partner. United States v. A & P Trucking Co., 358 U.S. 121 (1958).

Winding up partnership

A partnership that has dissolved continues only to wind up its business. RUPA802(a).

Domicile by Operation of Law - incompetents

A person lacking the mental legal capacity to choose a domicile will retain her parents' domicile. If the person once had legal capacity, chose a domicile, and then lost legal capacity, then her domicile remains the place where she was domiciled before losing capacity.

Persons under Fifth Amendment

A person means an individual. Artificial entities such as corporations, partnerships, and labor unions may not assert the privilege, but a sole proprietorship may. The privilege does not extend to the custodian of corporate records, even if production would incriminate the custodian individually.

Five Percent stock ownership

A person who acquires more than five percent of any class of stock must file a statement with the SEC that reveals his ownership interest, the source of his funding, and his purpose in acquiring the stock.

Corporation by estoppel

A person who deals with an entity as if it were a corporation is estopped from denying its existence and is thereby prevented from seeking the personal liability of the business owner. This doctrine is limited to contractual agreements. In addition, the business owner must have made a good-faith effort to comply with incorporation requirements and must lack knowledge that the requirements were not met.

Subpoena and Fifth Amendment

A person who is served with a subpoena requiring the production of possibly incriminating documents may invoke the privilege if the act of turning over the documents constitutes self-incriminating testimony. United States v. Hubbell, 530 U.S. 27 (2000).

Rescission of shareholder management agreement

A person who purchases stock in a corporation with a management agreement without knowledge of the agreement can rescind the purchase agreement. RMBCA § 7.32(c).

Personal Representative

A personal representative is either named in the will (executor) or appointed by the court (administrator) to oversee the winding up of a decedent's affairs. Any person with the capacity to contract may serve as a personal representative. Each state has a detailed statutory procedure for authorizing an executor or administrator to act on behalf of the estate. If an executor is not named in a will, then the court will appoint an administrator. In either case, the authority of the personal representative to act on behalf of the estate comes from the court. Generally, the personal representative must also file a bond, unless the will states otherwise.

Criminal Defense - Arrest

A police officer or a person acting under police direction is justified in using reasonable force to make a lawful arrest or to prevent the escape of one already in lawful custody.

Police reports as business records

A police report can qualify under the business records exception, but a statement made by a witness that is contained in the report does not generally qualify because the witness is not acting on behalf of the police in making the statement. The statement may, however, qualify under another hearsay exception, such as an opposing party's statement.

No use of false testimony

A prosecutor may not knowingly use perjured or false testimony for the case in chief, for sentencing, or to impeach the credibility of a witness.

Inspection of corporate records rights

A shareholder has a right to inspect and copy corporate records, books, papers, etc. upon five days' written notice stating a proper purpose.

Sale of controlling interest restriction

A shareholder with a controlling interest in a corporation that sells to an outsider may have a fiduciary obligation to the other shareholders.

Due Process - write-in candidates

A state may ban all write-in candidates in both primary and general elections, at least when the state provides other reasonable means by which a candidate can get on the ballot. Burdick v. Takushi, supra.

Due Process - candidate for other office

A state may prohibit a state office holder from becoming a candidate for another state office; the office holder must resign his current office in order to run for another office. Clements v. Fashing, 457 U.S. 957 (1982).

Ballot Access to general election

A state may refuse to grant a political party's candidate access to the general-election ballot unless the party demonstrates public support through voter signatures on a petition, voter registrations, or previous electoral success. Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997); Munro v. Socialist Workers Party, 479 U.S. 189 (1986).

Discrimination Against Out-of-State Commerce

A state or local regulation discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors. See City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) (state statute prohibiting importation of out-of-state garbage discriminated in favor of local trash collectors); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1959) (state law discriminated against out-of-state milk suppliers by requiring all milk sold in the city to be processed and bottled locally).

Hearsay Exception - Present Sense Impression

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay. Fed. R. Evid. 803(1).

Hearsay Exception - Excited Utterance

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception to the hearsay rule, the event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event (i.e., the declarant can be a bystander). Fed. R. Evid. 803(2).

Multiple Hearsay

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception. Fed. R. Evid. 805.

Due process - academic dismissal

A student is not entitled to a hearing with regard to dismissal from a public institution of higher learning. Board of Curators of University of Missouri v. Horowitz, supra (medical school student was fully informed respondent of the faculty's dissatisfaction with her clinical progress and the danger that this posed to timely graduation and continued enrollment); See also Regents of University of Michigan v. Ewing, supra (challenge to dismissal of medical student on substantive due process grounds rejected; court refused to override academic decision unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment).

Substantial step test

A subjective test, called the "substantial step" test, is applied to determine whether an attempt has occurred. Under this test, conduct does not constitute a substantial step if it is in mere preparation; the act must be conduct that tends to effect the commission of a crime.

Investigatory Power Enforcement and Witness's Rights

A subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt. The witness is entitled to certain rights, including procedural due process (e.g., presence of counsel) and the privilege against self-incrimination.

Tender offers requiring specific shareholder rights

A tender offer made by a person subject to the five percent disclosure rules must also provide specific shareholder rights. Securities Exchange Act Rule 14(d)(g).

Trust - ongoing transfers

A trust involves an ongoing series of transfers. Trust property is divided between income and principal, and the equitable interest is divided between the beneficiary holding the possessory estate and the beneficiary holding the future interest.

Trustee's liability for agents

A trustee is not liable for breaches committed by an agent unless the trustee: i) Directs, permits, or acquiesces in the agent's act; ii) Conceals the agent's act; iii) Negligently fails to compel the agent to redress the wrong; iv) Fails to exercise reasonable supervision over the agent; v) Permits the agent to perform duties that the trustee was not entitled to delegate; or vi) Fails to use reasonable care in the selection or retention of agents. No clear-cut standard for the delegation of duties to agents exists, but it is clear that a trustee cannot delegate his duties in their entirety, but rather should limit the delegation to ministerial duties.

Resignation of trustee

A trustee may resign from the position by: i) Providing at least 30 days' notice to the qualified beneficiaries, the settlor (if living), and any co-trustees; or ii) Obtaining court approval. In approving a resignation, the court may issue orders and impose conditions reasonably necessary for the protection of the trust property. In addition, any liability of a resigning trustee or of any sureties on the trustee's bond for acts or omissions of the trustee is not discharged or affected by the trustee's resignation.

Who Executes warrants

A warrant cannot be executed by a private citizen. Generally, only a police officer may execute a warrant, but administrative warrants may be executed by the appropriate governmental official (e.g., fire inspector).

Timing of warrant execution

A warrant that is not timely executed (i.e., an unreasonable delay occurs) may be subject to challenge on the grounds that probable cause ceased to exist.

Will Contests

A will contest is an objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator. The basis of a will contest is the assertion that the testator (i) lacked testamentary capacity, (ii) was operating under an insane delusion, or (iii) was subject to undue influence or fraud.

Destruction with Intent to Revoke

A will may be revoked by burning any portion thereof, or by canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Both the act and a simultaneous intent to revoke must be proven to yield a valid revocation.

Revocation of Will - Types

A will may be revoked wholly or partially in three ways: by subsequent writings, by physical destruction of the will, or by operation of law.

Rehabilitation of a witness

A witness who has been impeached may be "rehabilitated" by the introduction of rebuttal evidence by either party to support the witness's credibility. Rehabilitation may be accomplished by: i) Explanation or clarification on redirect examination; ii) Reputation or opinion evidence of his character for truthfulness, if the witness's character was attacked on that ground under Fed. R. Evid. 608(a); or iii) A prior consistent statement offered to rebut an express or implied charge that the witness lied due to improper motive or influence. Fed. R. Evid. 801(d)(1)(B).

Pendency of Appeal and Impeachment

A witness's conviction may be used for impeachment purposes even if an appeal is pending. Evidence of the pendency is also admissible. Fed. R. Evid. 609(e).

Impeaching reputation and opinion testimony

A witness's credibility may be attacked by testimony regarding the witness's character for untruthfulness. Generally, this testimony must be about the witness's reputation for having a character for untruthfulness or in the form of an opinion of the witness's character for untruthfulness. Fed. R. Evid. 608(a).

Criminal Defense - Public Authority

Actions taken by public officials pursuant to legal authority (e.g., court-ordered seizure of property, state-sanctioned executions) are justified.

Effect of disclosure on attorney-client waiver

Although the Federal Rules generally do not address the existence or scope of common-law privileges, there is one exception. Federal Rule 502 addresses the effect that a litigation-related disclosure of protected information has on the waiver of the attorney-client privilege, drawing a distinction between an intentional disclosure and an unintentional disclosure. The rule applies to confidential communications as well as material protected by the work-product doctrine. Fed. R. Evid. 502.

Searching Homes

Although the Supreme Court has stated that "the Fourth Amendment protects people, not places," (see id. at 351), the Fourth Amendment, by its terms, protects against an unreasonable governmental search of a "house." This protection extends to persons who have the right to immediate possession of a dwelling, such as the renter of an apartment or a dormitory. Chapman v. United States, 365 U.S. 610 (1961).

Derivative action expenses

Although the plaintiff-shareholder is usually not entitled to share in a recovery, she can seek reimbursement from the corporation for reasonable litigation expenses, including attorney's fees, if the lawsuit has resulted in a substantial benefit to the corporation. If the court finds that the proceeding was commenced or maintained without a reasonable cause or for an improper purpose, then it may order the plaintiff-shareholder to pay the defendant's litigation expenses. RMBCA §7.46.

Accomplice Liability

An accomplice (i.e., an accessory before the fact or a principal in the second degree) is a person who, with the requisite mens rea, aids or abets a principal prior to or during the commission of the crime.

Power of Attorney - Agent Duties

An agent has the following fiduciary duties: i) Exercise the powers for the benefit of the principal; ii) Separate the assets of the principal from the agent; iii) Exercise reasonable care; iv) Account for all transactions made on behalf of the principal; and v) File an accounting of his administration whenever so directed by the court.

Arrest Warrants

An arrest warrant is issued by a detached and neutral magistrate upon a finding of probable cause that a crime has been committed and that this person was involved in committing the particular crime. However, an arrest made pursuant to a warrant that failed to satisfy the probable cause requirement is not illegal when the officer making the arrest independently had probable cause for making the arrest.

Generation-skipping transfer tax

An estate tax may be owed when a decedent passes property at his death. When a decedent passes property to remote descendants, a generation-skipping tax may be owed.

Narrow construction of federal preemption

An express federal preemption must be narrowly construed. Altria Group, Inc. v. Good, 555 U.S. 70 (2008) (Federal Cigarette Labeling and Advertising Act did not preempt a suit based on a state's general deceptive-practices statute because such a statute was not based on smoking and health).

Inside traders

An insider is a director, an officer, or other employee of the corporation who uses nonpublic information for personal gain.

Removal of corporate officers

An officer may be removed at any time, with or without cause. RMBCA §8.43. The existence of an employment contract between an officer and the corporation does not prevent the removal of the officer, but it may give rise to contractual remedies such as damages if removal constitutes a breach of contract.

Persons who may wind up partnership

Any partner who has not wrongfully dissociated may participate in winding up the partnership's business, including the legal representative of the last surviving partner. RUPA 803(a)(b). (Note: The legal representative of a deceased partner who was not the last surviving partner only has the rights of a transferee of the deceased partner's partnership interest. RUPA 601, cmt. 8.)

Judicial supervision of winding up partnership

Any partner, legal representative, or transferee may seek judicial supervision of the winding up. RUPA 803(a).

Appraisal - fair market value

The corporation must pay shareholders what it estimates as fair market value. If the corporation and the shareholder do not agree on a price for the shareholder's stock, then the fair value of the stock is determined through a court action.

Knowledge of the right to withhold consent to search

The failure by police to inform the person from whom consent is sought that she has the right to withhold consent does not invalidate the consent. Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973).

Psychotherapist-Patient Privilege

The federal courts and most states recognize a privilege for confidential communications between a psychiatrist, psychologist, or licensed social worker and a patient in the course of diagnosis or treatment. The patient holds the privilege, but the psychotherapist must assert the privilege in the patient's absence. The privilege does not exist if (i) the patient's mental condition is at issue, (ii) the communication was a result of a court-ordered exam, or (iii) the case is a commitment proceeding against the patient. The psychotherapist-patient privilege is more widely recognized than the traditional physician-patient privilege.

Indigents and court fees

The government cannot deny an indigent person access to the court system because of his inability to pay the required court fees, if such imposition of fees acts to deny a fundamental right to the indigent. Due process requires such fees to be waived. Conversely, if the matter does not involve a fundamental right, no waiver is required.

Nondisclosure and insider trading

The mere possession of material information that is not public knowledge does not give rise to Rule 10b-5 liability; a person who has such insider knowledge does not incur liability unless he also trades stock or other securities on the basis of such knowledge. This is often referred to as the "disclose or abstain" rule.

Date partnership merger is effective

The merger takes effect upon approval of all necessary parties, the filing of all required documents, or any date specified in the plan of merger, whichever is later.

Larceny insufficient intent

The necessary specific intent does not exist when the defendant's intent is to: i) Borrow property with the ability to return it; ii) Pay for merchandise that she has the means to buy; or iii) Take money as repayment of a debt.

LP Allocation of distributions

The partners may choose to make distributions on any basis, provided such basis is in writing. Without a written agreement, distributions are allocated among the partners in the same manner as profits and losses are shared. RULPA 503, 504.

Per capita at each generation

The per capita at each generation approach, followed by the UPC, divides the property into as many equal shares as there are members of the nearest generation of issue who survive the decedent and deceased members of that generation with issue who survive the decedent. Unif. Probate Code § 2-106(b).

Standing - Causation

The plaintiff must show that the injury was fairly traceable to the challenged action—that is, that the defendant's conduct caused the injury. Warth v. Seldin, 422 U.S. 490 (1975).

Embezzlement another's property

The property embezzled must belong to another. The inability to fulfill a contractual obligation (e.g., pay back a loan) is not embezzlement.

Settlor

The settlor, sometimes referred to as the grantor, is the creator of the trust.

Criminal Battery - application of force

The touching, however slight, must result in bodily harm (e.g., a bruise) or an offensive touching (e.g., an unwanted kiss). The force can be applied by a third party acting under the defendant's direction or by an object controlled by the defendant (e.g., a brick thrown by the defendant).

Partnership transferee limitations

The transferee is not entitled to participate in the management or conduct of the partnership business, to access partnership records, or to demand other information from the partnership. RUPA 503(a)(3).

Duty to make property productive

The trustee must preserve trust property and work to make it productive by pursuing all possible claims, deriving the maximum amount of income from investments, selling assets when appropriate, securing insurance, paying ordinary and necessary expenses, and acting within a reasonable period of time in all matters.

Involuntary Manslaughter and Unlawful Act

The unlawful act may occur in one of two ways: i) Under the misdemeanor-manslaughter rule, which is a killing committed in the commission of a malum in se (wrong in itself) misdemeanor; or ii) A killing committed in the commission of a felony that is not statutorily treated as first-degree felony murder or second-degree murder. The term malum in se means "wrong in itself," or "inherently evil," and includes crimes such as assault and battery. Malum prohibitum refers to wrongs that are merely prohibited (i.e., not inherently immoral or hurtful, but wrong because of a statute), such as a parking violation, smuggling, or failure to obtain a license. A homicide resulting from a wrong that is malum prohibitum will constitute involuntary manslaughter only if the unlawful act was willful or constituted criminal negligence.

Kidnapping - unlawful

The unlawful requirement excludes legally sanctioned actions, such as the imprisonment of a felon by the state after his conviction.

Manslaughter and causation

There must be a causal connection between provocation, passion, and the fatal act. There will be no mitigation if the intent to kill was formed prior to the provocation.

Statements of partnership authority and denial

To clarify the existence and scope of a partner's authority, statements of partnership authority and denial may be filed with the state. RUPA 105, 303, 304.

Equal Protection discriminatory intent

To trigger strict or intermediate scrutiny, there must be discriminatory intent on the part of the government. The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is insufficient. Discriminatory intent can be shown facially, as applied, or when there is a discriminatory motive.

Trusts and Choice of Law

Transfers of trust property are governed by the appropriate rules indicated above for the particular type of property. A property question that involves the administration of a trust, however, is usually governed by the law of the place where the trust is administered.

Dependent Relative Revocation

Under certain circumstances, many jurisdictions employ the equitable doctrine of dependent relative revocation ("DRR"), which allows a court to disregard a testator's revocation that was based on a mistake of law or fact and would not have been made but for that mistake. The testator's last effective will, prior to the set-aside revocation, will once again control his estate. The doctrine of DRR can apply to partial revocations as well. Typically, courts apply this doctrine only when there is a sufficiently close identity between the bequest that was revoked and the bequest that was expressed in the invalid subsequent will.

Interest or expectancy test

Under the "interest or expectancy" test, the key is whether the corporation has an existing interest (e.g., an option to buy) or an expectancy arising from an existing right (e.g., purchase of property currently leased) in the opportunity. An expectancy can also exist when the corporation is actively seeking a similar opportunity.

Mere instrumentality

Under the "mere instrumentality" test, a member would have to show that (i) the members dominated the entity in such a way that the LLC had no will of its own, (ii)the members used that domination to commit a fraud or wrong, and (iii) the control and wrongful action proximately caused the injury.

Due Process Limitations to Choice of Law

Under the Due Process Clause of the Fourteenth Amendment, the U.S. Supreme Court has held that a forum state may apply its own law to a particular case only if it has a significant contact or significant aggregation of contacts with the state such that a choice of its law is neither arbitrary nor fundamentally unfair. Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). If the forum state's only contact is the fact that the cause of action was brought in its courts or the fact that the plaintiff once lived there, then application of the substantive law of the forum state will violate due process. Home Ins. Co. v. Dick, 281 U.S. 397 (1930).

Trustee self-dealing - UTA

Under the UTA, a trustee can avoid liability if he can prove that the transaction was objectively fair and reasonable, and not affected by a conflict of interest.

Forced-sale doctrine

Under the forced-sale doctrine, the forced exchange of shares in a merger or similar transaction constitutes a sale.

Will "Speaks" at the Time of Death

Under the general rule of construction that a will "speaks" as of the time of death, a bequest of a generically described property applies to property that meets the generic description at the testator's death.

Torts and Governmental-Interest-Approach

Under the governmental-interest approach, the forum state generally looks to its own law, so long as that state has a legitimate interest in applying its own law. Another state's law would be applied if a party makes a request for such application and the forum court determines that the other state's law should apply in accordance with the forum state's policies. See § II.B.3 Governmental-Interest Approach, supra.

Undocumented alien classification

Undocumented aliens are not a suspect class, but the states may not deny primary or secondary public education benefits to undocumented aliens. Plyler v. Doe, 457 U.S. 202 (1982)

Due process - enemy combatants

United States citizens held as enemy combatants are entitled to meaningful opportunity to dispute the facts of their detention by a neutral decision maker, albeit the opportunity is adapted to reduce burdens on executive authority brought on by an ongoing military conflict. Boumediene v. Bush, 553 U.S. 723, (2008).

Legal attacks on trusts

Unless a challenge is well founded, the trustee must defend the trust against legal attacks.

Grand Jury Subpoena and Fourth Amendment

Unless a grand jury subpoena is being used for harassment or is extremely broad, requiring a person to appear before the grand jury under such subpoena does not fall under the protection of the Fourth Amendment.

Winding up LP

Unless the partnership agreement provides otherwise, the task of winding up the limited partnership's affairs falls to the general partners who have not wrongfully dissolved the limited partnership. When there are not any such general partners, the limited partners may wind up the partnership's affairs. Alternatively, a partner, her legal representative, or an assignee may petition a court to wind up the limited partnership's affairs. RULPA 803.

Trust powers of appointment

Usually given to a beneficiary, a power of appointment enables the holder to direct a trustee to distribute some or all of the trust property without regard to the provisions of the trust. A special power of appointment allows the donor to specify certain individuals or groups as the objects of the power, to the exclusion of others. The power can be limited as to recipient and time of exercising.

Voluntary Intoxication and specific-intent crimes

Voluntary intoxication is a defense to specific-intent crimes if the intoxication prevents the formation of the required intent. For example, intoxication may prevent the formation of the premeditation required for first-degree murder but not second-degree murder. Under the MPC, voluntary intoxication is a defense to crimes for which a material element requires a mental state that is purposely or knowingly and the intoxication prevents the formation of that mental state. MPC § 2.08(1),(2).

Voluntary Manslaughter

Voluntary manslaughter is homicide committed with the intent to kill, but also with mitigating circumstances.

Director indemnification and insurance

When a director is involved in a legal action as a consequence of her role as director, she may seek indemnification for expenses incurred as well as for any judgment or award declared against her. Indemnification may be (i) mandatory, (ii) prohibited, or (iii)permissive. RMBCA §§ 8.50-8.59.

Purchase of dissociated partner's interest

When a partner dissociates from the partnership but the partnership is not dissolved, the partnership must buy out the dissociated partner's partnership interest. RUPA 701(a).

Inadvertent Disclosure by Attorney

When made during a federal proceeding, the inadvertent disclosure of privileged communication or information does not waive the privilege if the holder of the privilege: i) Took reasonable steps to prevent disclosure; and ii) Promptly took reasonable steps to rectify the error. Fed. R. Evid. 502(b). In determining whether the holder took reasonable steps to prevent disclosure, factors such as the number of documents to be reviewed, the time constraints for production, or the existence of an efficient records-management system may be relevant.

Mens rea and causation

When mens rea is a requirement of a crime, that mens rea must generally cause the actus res. In addition, the defendant's act must cause the particular result made unlawful by statute.

Ineffective Trust Appointments

When one with a power of appointment makes an appointment that exceeds the grant given to him, other valid appointments are not invalidated, but the property or interest that was invalidly appointed passes to the "taker in default of appointment"—that party who would have received the interest in the absence of any appointment.

Reproductions of physical objects as evidence

When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does. It is generally not necessary to call the person who created the reproduction to authenticate it. However, the creator may be called to authenticate the reproduction and may do so by testifying that the reproduction method produces an accurate result. Fed. R. Evid. 901(b)(9).

Continuing in partnership for term

When the partners continue the business without any settlement or liquidation after the term expires or the undertaking is completed, there is a presumption that they have agreed to continue the business. The partnership is then transformed into a partnership at will; the rights and duties of the partners remain the same as they were. RUPA 406.

Appraisal - no favorable vote

When the proposed corporate action is submitted to the shareholders for their approval, the shareholder must not vote in favor of the action (i.e., she must abstain or vote "no"). RMBCA §13.21(a).

Search and trespass

While the fact that a governmental agent is on property without permission may make a warrantless search unreasonable (e.g., a search of a home), the fact that a governmental agent is illegally on property does not automatically make the search illegal (United States v. Oliver, supra), nor does the fact that a governmental agent is legally in a public place make the search legal (Katz v. United States, supra).

LP liability to creditor

With respect to a partnership creditor, the partner is liable for this obligation when the creditor acts in reliance on it. RULPA 502(c).

Termination of LLC Membership

Withdrawal of a member from an LLC does not automatically trigger dissolution of the LLC. The LLC may elect to liquidate the fair value of that person's interests, as of the date the person ceased to be a member, based upon the person's right to share in distributions from the LLC. The continuing members of the LLC following the withdrawal of a member will be deemed to have entered into an operating agreement in effect immediately prior to the withdrawal, and the members bound by the operating agreement shall be only those members who have not withdrawn.

Age and competency of will witnesses

Witnesses must be of sufficient mental capacity and maturity to comprehend the value of the act of witnessing a will. Competency is determined as of the time of signing; the subsequent incompetence of a testator or witness does not invalidate a will.

Workers' Compensation and Choice of law

Workers' compensation is governed by state statutes and administered by state agencies. Conflicts between state laws can develop, though, particularly with regard to which state can award benefits.

State tax constitutional violations

i) A tax that discriminates against nonresident individuals—for example, an income tax that exempts local residents—may violate the Comity Clause of Article IV. Austin v. New Hampshire, 420 U.S. 656 (1975). ii) A discriminatory tax on out-of-state businesses, even if authorized by Congress and therefore allowed under the Commerce Clause, may still violate the Equal Protection Clause of the Fourteenth Amendment, if there is no rational basis to support it. Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985). iii) An income-based tax imposed on nonresidents that taxes income earned outside the state's borders may violate the Due Process Clause of the Fourteenth Amendment. ASARCO Inc. v. Idaho Tax Comm'n, 458 U.S. 307 (1982).

Common law murder

i) Unlawful (i.e., without a legal excuse); ii) Killing; iii) Of another human being; iv) Committed with malice aforethought. "Malice aforethought" includes the following mental states: intent to kill, intent to inflict serious bodily injury, reckless indifference to an unjustifiably high risk to human life (depraved heart), or intent to commit certain felonies (felony murder).

Counsling clients to invoke the fifth

Attorneys may counsel their clients to invoke the privilege and will not be held in contempt of court. Otherwise, the person invoking the privilege would be denied his Fifth Amendment protection.

Federal alienage classification

Because Congress has plenary power over aliens under Article I, a federal alienage classification is likely valid unless it is arbitrary and unreasonable.

Grand Jury and double jeopardy

Because jeopardy does not attach until a trial begins, the Double Jeopardy Clause does not apply to grand jury proceedings. The refusal of a grand jury to indict a defendant with respect to a specific crime does not prevent the indictment of the defendant for the same crime by another grand jury. United States v. Williams, 504 U.S. 36, 49 (1992). (See §VI.A., Double Jeopardy, infra.)

Recognition of Marital Property Judgments

Bilateral divorces usually include all issues related to property and alimony. Full faith and credit is given to these provisions in a divorce. In ex parte divorces, however, the parties must settle issues related to property and alimony in a court that has personal jurisdiction over both parties.

Defense Against Foreign Law - Penal

Both the Restatement (First) of Conflict of Laws and the Restatement (Second) of Conflict of Laws provide that a forum state will not enforce another state's penal laws. For penal laws, only an actual criminal prosecution is prohibited, not a civil action involving monetary sanctions, which might otherwise be considered a penalty. The Restatement (Second) of Conflict of Laws specifically excludes wrongful-death actions and cases based on the statutory liability of officers, directors, and shareholders of corporations for debts from being considered penal in nature.

Insignificant State Involvement

Businesses that the government substantially regulates or to which the government grants a monopoly, such as utility companies, do not exercise state action. Further exclusions include nursing homes that accept Medicaid, schools that receive government funds but are operated by a private corporation, and congressional grants of a corporate charter.

Alienage classification

Classifications based on status as a lawful resident of the United States (as opposed to a citizen) are subject to a variety of different standards, depending on the level of government and the nature of the classification.

Surviving Spouse, Community Property, and Quasi-Community Property

Community property consists of the earnings and certain acquisitions of both spouses during the marriage. At the death of one spouse, one-half of the community property is already owned by the other, and only the decedent's half is subject to disposition by will. Quasi-community property is separate property that would have been community property had the parties been domiciled in a community-property state when acquired. Quasi-community property is treated like community property for distribution purposes.

Compromise Evidence prohibited for any party

Compromise evidence is not admissible on behalf of any party who participated in the compromise negotiations, even the party who made the settlement offer or statement. The protection of this rule cannot be waived unilaterally. Moreover, when there are more than two parties, a settlement agreement entered into by a party with an adverse party cannot be used by a remaining adverse party to prove or disprove the validity or amount of an unsettled claim. Fed. R. Evid. 408, Notes of Advisory Committee (2006); Branch v. Fid. & Cas. Co., 783 F.2d 1289 (5th Cir. 1986).

Compromise offers and negotiations as evidence

Compromise offers made by any party, as well as any conduct or statements made during compromise negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim, nor may they be admitted for impeachment by prior inconsistent statement or contradiction. Fed. R. Evid. 408.

Criminal False Imprisonment - confinement

Confinement may be effected by forcing a person to go where he does not want to or by preventing him from going where he does want so long as no alternative routes are available to him. This may be done by actual force, threat of force, or a show of force.

Due process - presidential elections

Congress can supersede state residency requirements with respect to presidential elections. Oregon v. Mitchell, 400 U.S. 112 (1970).

Commandeering limitation

Congress cannot "commandeer" state legislatures by commanding them to enact specific legislation or administer a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly. Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). However, through the use of the taxing and spending powers, Congress may encourage state action that it cannot directly compel.

Investigatory Power

Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate. McGrain v. Daugherty, 273 U.S. 135 (1927).

Postal Power

Congress has the exclusive power "to establish post offices and post roads" under Article I, Section 8, Clause 7. Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment).

Thirteenth Amendment - Ban on Slavery

Congress has the power to adopt legislation rationally related to eliminating racial discrimination, as it is among the "badges or incidents" of slavery. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). This power has been broadly interpreted to allow Congress to regulate both private and government action, including racial discrimination by private housing sellers, private schools, and private employers. (This is the only amendment that authorizes Congress to regulate purely private conduct.) This clause also gives Congress the power to eliminate involuntary servitude.

Territorial Limitations to Criminal Authority

Congress has the power to criminalize conduct occurring over federally owned or controlled territory (national parks or the District of Columbia), conduct by United States nationals abroad, and conduct on ships or airplanes. A state has the authority to prosecute a person for a crime committed within the state and for a crime that is only partly committed within the state if an element of the crime is committed within the state. In addition, the following actions may be prosecuted by the state: i) Conduct outside the state that constitutes an attempt to commit a crime within the state; ii) Conduct outside the state that constitutes a conspiracy to commit an offense within the state when an overt act in furtherance of the conspiracy occurs within the state; iii) Conduct within the state to commit attempt, solicitation, or conspiracy of a crime in another jurisdiction when the state and the other jurisdiction recognize the crime; and iv) The failure to perform outside the state a duty imposed by the state.

Power to regulate interstate commerce

Congress has the power to regulate (i) the channels (highways, waterways, airways, etc.) and (ii) the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right. United States v. Lopez, 514 U.S. 549 (1995).

Article III - Congressional authorization

Congress may abrogate state immunity from liability if it is clearly acting to enforce rights created by the remedial provisions of the Thirteenth, Fourteenth, and Fifteenth Amendments (i.e., the Civil War Amendments), and does so expressly. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Congress generally may not abrogate state immunity by exercising its powers under Article I (e.g., Commerce Clause powers). Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

Equal Protection and Congressional apportionment of House members

Congress, in apportioning members of the House among the states pursuant to Article I, Section 2, is not held to the "mathematical equality" standard. The method adopted by Congress is entitled to judicial deference and is assumed to be in good faith. Dept. of Commerce v. Montana, 503 U.S. 442 (1992) (Montana's loss of a congressional seat upheld, even though retention of the seat would have placed Montana closer to the ideal population size for a congressional district).

Conspiracy

Conspiracy is: i) An agreement; ii) Between two or more persons; iii) To accomplish an unlawful purpose; iv) With the intent to accomplish that purpose. The majority rule and federal law, as well as the MPC, now require the commission of an overt act, which can be legal or illegal, in furtherance of the conspiracy to complete the formation of the conspiracy. At common law, no overt act was required for the conspiracy to be complete.

Trustee constructive fraud

Constructive fraud occurs if an accounting includes false factual statements that could have been discovered to be false had the trustee properly investigated.

Other factors in corporate opportunity

Courts look at additional factors in determining whether an opportunity belongs to the corporation. These factors include: (i) the relationship between the person offering the opportunity and the director and corporation, (ii) how and when the director acquired knowledge of the opportunity, and (iii) the relationship of the director to the corporation.

Vicarious Liability for Strict Liability crimes

Courts often impose vicarious liability for strict?liability crimes, most commonly when an employer or principal is vicariously liable for the crimes of an employee or agent. However, sometimes it is unclear whether the legislature intended for vicarious liability to apply to a strict-liability offense. When the punishment for a strict-liability crime is light, courts are more likely to find that vicarious liability applies. The modern trend is to limit vicarious liability to regulatory crimes. Vicarious liability may present due process issues because it can involve criminal liability without a personal act on the part of the defendant. Although imprisonment for a faultless crime may have constitutional due process implications, when the punishment for a crime is merely a fine, the application of vicarious liability is unlikely to constitute a denial of due process.

Divorce Judgments from Foreign Countries

Courts will generally extend comity to foreign divorce judgments, as long as the requirements of domicile are met. With respect to other divorce-related agreements such as alimony, property, and child custody, the rules are usually followed the same as if the judgment came from another state.

Involuntary Manslaughter and criminal negligence

Criminal negligence is grossly negligent action (or inaction when there is a duty to act) that puts another person at a significant risk of serious bodily injury or death. It requires more than ordinary negligence for tort liability and something less than the extremely reckless conduct required for depraved-heart murder. For example, the failure of a parent, under a duty of care, to provide medical care to a sick minor child constitutes criminal negligence. Under the Model Penal Code rule, the defendant must have acted recklessly, which is a "gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." MPC § 2.02(2)(c). The defendant must have been actually aware of the risk his conduct posed.

Presumption against criminal strict liability

Criminal offenses requiring no mens rea are generally disfavored. United States v. United States Gypsum, Co., 438 U.S. 422, 438 (1978). Thus, courts have traditionally held that there must be some clear indication of congressional intent, express or implied, to dispense with mens rea as an element of the crime. In determining legislative intent, courts will often consider the severity of the associated penalty, finding crimes with relatively light penalties to be strict liability offenses, and those with more severe penalties (such as felony crimes) to have a mens rea element. Staples v. United States, 511 U.S. 600 (1994).

Custodial interrogation

Custodial interrogation is questioning initiated by known (as opposed to under cover) law-enforcement officers after a person has been taken into custody.

Custodial under Miranda

Custody is a substantial seizure and is defined for Miranda purposes as either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. New York v. Quarles, 467 U.S. 649, 655 (1984). If there has been no formal arrest, the question is whether a reasonable person would have believed he could leave, given the totality of the circumstances. Thompson v. Keohane, 516 U.S. 99 (1995). A child's age is a relevant factor in determining whether a reasonable child would have believed he was in custody. J.D.B. v. North Carolina, 564 U.S. 261 (2011). Traffic stops generally are not considered custodial because they generally are brief and temporary. Berkemer v. McCarty, 468 U.S. 420 (1984).

Cy pres inefficiency insufficient

Cy pres is not invoked merely upon the belief that the modified scheme would be a more desirable, more effective, or more efficient use of the trust property.

Criminal Defense - Justification and Excuse

Defenses may be divided into the categories of justification and excuse. When the defendant's actions, despite being criminal, are socially acceptable, the defendant has acted justifiably. Self-defense and defense of others are examples of justification defenses. When the defendant has a disability that makes her not responsible for her actions, the defendant's criminal behavior is excused. Insanity, intoxication, and duress are examples of excuse defenses. This distinction does not affect the applicability or operation of these defenses.

Partnership merger

Different from a conversion, a partnership can merge into another business entity. For example, a partnership can merge into a limited partnership.

Permissible discrimination against out-of-state citizens

Discrimination against out-of-state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if: i) The nonresidents either cause or are a part of the problem that the state is attempting to solve; and ii) There are no less-restrictive means to solve the problem.

Debt distribution

Distribution of a corporation's indebtedness, such as bonds or promissory notes, is subject to the same requirements as other distributions. When indebtedness is to be repaid over time (i.e., on an installment basis), the lawfulness of the distribution is tested as of the date of distribution. RMBCA §6.40(e). Corporate indebtedness received as a lawful distribution is on par with a corporation's general unsecured creditors. RMBCA §6.40(f).

Dividends

Dividends are distributed to persons who are shareholders on the record date set by the board of directors. If the board does not set a date, then the dividend is payable to persons who are shareholders on the date that the board authorized the dividend. RMBCA §6.40(b).

Domicile by Operation of Law

Domicile by operation of law occurs when an individual does not have the legal capacity to choose her domicile, as in the case of infants and incompetents. Historically, a married woman's domicile was that of her husband, although today married women may choose their states of domicile.

Conflict of Law - Domicile

Domicile is a legal concept that can be significant for both choice-of-law determinations and jurisdictional purposes. If a person is domiciled in a particular state, then the person will be subject to personal jurisdiction in that state's courts whether or not the person can be found and personally served process. Milliken v. Meyer, 311 U.S. 457 (1940). In the conflict-of-laws context, domicile will be considered an important contact in jurisdictions that apply a "contacts" approach to choice of law. See §II.B.2 Most-Significant-Relationship Approach, infra. Ordinarily, the determination of a person's domicile is a question of fact.

Due process and intentional conduct

Due process addresses injury that results from an intentional governmental act. Mere negligent conduct by a government employee does not trigger a due process right. Daniels v. Williams, 474 U.S. 327 (1986) (prisoner's injury due to correction officer's negligence was not a deprivation of liberty).

Due Process and Neutral Decision Maker

Due process entitles a person to a fair decision maker. A judge must recuse herself when she has a direct, personal, substantial, pecuniary interest in a case (i.e., actual bias) or there is a serious objective risk of actual bias. In the latter instance, proof of actual bias is not required, and subjective impartiality is not sufficient to justify a refusal to recuse. Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009).

Partnership management rights

Each partner has equal rights in the management and conduct of the partnership. RUPA 401(f).

Crime committed in the presence of the arresting party

Either a police officer or a private individual has a right to arrest without an arrest warrant if either a felony or a misdemeanor is committed in the arresting party's presence.

Statement of dissociation

Either the partnership or the dissociated partner may file a statement of dissociation with the state. This statement, which constitutes a limit on the dissociated partner's authority, is treated as giving third parties notice of the dissociation as of 90 days after the statement is filed. Consequently, it can be used to reduce the window of partnership liability for a dissociated partner's actions from two years to 90 days. RUPA704.

Embezzlement

Embezzlement is the: i) Fraudulent; ii) Conversion; iii) Of the property; iv) Of another; v) By a person who is in lawful possession of the property.

Putative spouses under intestacy

Even if a marriage is not valid, as long as one party believes in good faith in its validity, the spouses are termed putative and qualify as spouses for inheritance purposes.

Testator Insane Delusion

Even if a person has testamentary capacity, a defect in the testator's capacity may invalidate all or part of a will. An insane delusion is a belief for which there is no factual or reasonable basis, but to which the testator adheres despite all reason and evidence to the contrary. Courts, however, will generally not apply the doctrine to religious or spiritual beliefs. Both undue influence and fraud require misconduct by a third party, whereas an insane delusion arises independently.

Trustee abuse of discretion

Even if a trustee has complete discretion over a trust, she must still act in the best interests of the trust and its beneficiaries.

Exclusionary Rule and harmless error

Even if the trial court wrongfully admitted illegally seized evidence, the appellate court can refuse to order a new trial if it finds that the error was harmless beyond a reasonable doubt, meaning that the erroneously admitted evidence did not contribute to the result.

Trustee self-dealing exceptions

Even when self-dealing is authorized by the settlor under the terms of the trust, by court order, or by all beneficiaries, the transaction must still be reasonable and fair for the trustee to avoid being liable for breach. Courts tend to strictly interpret attempted exculpatory clauses relieving trustees from liability. Complete exculpatory clauses are void as contrary to public policy, and limited clauses are only honored if there is no finding of bad faith or unreasonableness.

UTMA accounts

Every state has enacted the Uniform Transfers to Minors Act (UTMA), which provides a convenient method by which an account can be set up for a minor with a custodian who is required to manage the account until the minor reaches age 21. Such an arrangement is not a true trust because the custodian does not hold legal title to the account.

No Immunization of evidence by compromise negotiations

Evidence may be admissible through means other than as an admission made during compromise negotiations. A party does not immunize (i.e., protect from admission) evidence simply by discussing it during compromise negotiations. Fed. R. Evid. 408, Notes of Advisory Committee (2006).

Effect of pardon on impeachment

Evidence of a witness's conviction is not admissible if the conviction has been the subject of a pardon, annulment, or other action based on a finding of innocence. This rule also applies to an action based on a finding that the witness has been rehabilitated, provided that the witness has not been convicted of a later crime punishable by death or imprisonment in excess of one year (typically, a felony). Fed. R. Evid. 609(c).

Admissibility of settlement negotiations for other reasons

Evidence of settlement offers and negotiations is admissible to prove bias or prejudice of a witness, to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution.

Absence of a record in a business record

Evidence that a matter is not included in a record of a regularly conducted activity may be admissible to prove that the matter did not occur or exist, provided that a record was regularly kept for a matter of that kind. The opponent may prevent admission by showing circumstances, including the possible source of the information, that indicate a lack of trustworthiness. Fed. R. Evid. 803(7).

Liability Insurance as evidence

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, such evidence may be admissible for another purpose, such as to prove agency, ownership, or control, or to prove a witness's bias or prejudice. Fed. R. Evid. 411.

Circumstantial Evidence

Evidence that tends to indirectly prove a factual proposition through inference from collateral facts is circumstantial. An eyewitness who testifies that, moments before entering a room, she heard a shot, and upon entering the room saw the defendant standing over the body of the victim holding a smoking gun is circumstantial evidence that the defendant committed a homicide.

Ex Parte Probate

Ex parte probate is informal and requires no notice for the representative to petition for appointment. The original will must accompany the petition, and the executor must swear that, to the best of his knowledge, the will was validly executed. Within 30 days of appointment, the personal representative must give notice to all interested persons, including heirs apparently disinherited by the will.

Rights of general partner in limited partnership

Except as provided in the partnership agreement, a general partner has the rights and powers of a partner in a partnership without limited partners and is subject to the same restrictions as such a partner. RULPA 403(a).

LP Liability for contribution

Except as provided in the partnership agreement, a partner is obligated to the limited partnership with respect to any written, enforceable promise of a future contribution. When a partner is unable to perform services due to death or disability, the partner or his estate must pay to the partnership the cash value of such services. RULPA 502(a), (b).

Trust authorized investments

Exculpatory clauses that expressly authorize all investments do not protect a trustee who acts in bad faith or recklessly, but they do give trustees more room for minor lapses in judgment.

Executive Privilege

Executive privilege is a privilege with respect to the disclosure of confidential information by the executive branch to the judiciary or Congress. This privilege and the more narrow presidential privilege, which applies to communications made in the performance of a president's responsibilities to shape policies and make decisions, have been recognized by the Supreme Court. The presidential privilege survives an individual president's tenure, but this privilege is not absolute. Cheney v. United States, 542 U.S. 367 (2004); United States v. Nixon, 418 U.S. 683 (1974).

Extortion vs. robbery

Extortion differs from robbery in two respects: i) The threats need not be of immediate harm, nor need they be of a physical nature (e.g., threatening to expose the victim's marital infidelity in the future is sufficient); and ii) The property intended to be taken need not be on the victim or in his presence.

Exceptions to Parol Evidence

Extrinsic evidence can always be admitted for the following purposes: i) To clarify an ambiguity in the terms of the writing; ii) To prove trade custom or course of dealings; iii) To show fraud, duress, mistake, or illegal purpose on the part of one or both parties; or iv) To show that consideration has (or has not) been paid.

Prior inconsistent statements and collateral matters

Extrinsic evidence of a prior inconsistent statement cannot be used to impeach a witness regarding a collateral (i.e., irrelevant) matter; the questioning party is bound by the witness's answer.

Extrinsic evidence and prior inconsistent statements

Extrinsic evidence of a witness's prior inconsistent statement may be introduced only if the witness is given the opportunity to explain or deny the statement, and the opposing party is given the opportunity to examine the witness about it. The witness's opportunity to explain or deny the statement need not take place before the statement is admitted into evidence.

Face-to-face confrontation

Face-to-face confrontation is not an absolute right. A criminal defendant has the right to confront witnesses against him under the Sixth Amendment, unless preventing such confrontation is necessary to further an important public policy and the reliability of the testimony is otherwise assured. A defendant who voluntarily leaves the courtroom or a disruptive defendant whom the judge removes from the courtroom has not had his right to confrontation violated. This is to be determined on a case-by-case basis. The state's interest in protecting child witnesses from more than de minimis trauma as a result of testifying in the defendant's presence is considered an important public purpose under this rule. Maryland v. Craig, 497 U.S. 836, 855-856 (1990).

Probable Cause for Search Warrant

Facts supporting probable cause may come from any of the following sources: i) A police officer's personal observations; ii) Information from a reliable, known informant or from an unknown informant that can be independently verified; or iii) Evidence seized during stops based on reasonable suspicion, evidence discovered in plain view, or evidence obtained during consensual searches.

Conspiracy - impossibility

Factual impossibility (that it was factually impossible to complete the intended crime) is not a defense to conspiracy. Legal impossibility (that the intended act is not criminal in nature) may be a defense if the object of the agreement is not a crime.

Defense to Solicitation - factual impossibility

Factual impossibility is not a defense to solicitation. If a solicitor is part of a group that was meant to be exempted by the statute, then the solicitor cannot be guilty of solicitation (e.g., a minor female soliciting sex cannot be guilty of statutory rape).

Criminal False Imprisonment

False imprisonment is the: i) Unlawful; ii) Confinement of a person; iii) Without consent.

Justiciability and advisory opinions

Federal courts may not render advisory opinions on the basis of an abstract or a hypothetical dispute. An actual case or controversy must exist.

Savings clause

Federal law may also contain "savings clauses" that explicitly preserve or allow state laws that regulate in the same area, e.g., 33 U.S.C. § 1365 (The Clean Water Act preserves "any right which any person (or class of persons) may have under any statute or common law.").

Felony murder

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. The felonies traditionally considered inherently dangerous are: Burglary, Arson, Rape, Robbery, and Kidnapping. [Mnemonic: BARRK]. (Common-law felonies also include murder, manslaughter, mayhem, and sodomy, but the BARRK crimes are most commonly tested in the context of felony murder; neither murder nor manslaughter can be the basis for a felony-murder charge.) To convict a defendant of felony murder, the prosecution must establish the underlying felony and that the defendant committed that felony. In addition, in most states, any aggravated felony committed with the use of a dangerous weapon is subject to the felony-murder rule. However, such an aggravated felony must be independent of the killing itself to qualify as an underlying felony for felony murder (e.g., aggravated battery cannot be the basis for a felony-murder charge). There is no charge of attempted felony murder if the unintended victim does not die. Generally, co-felons (including accessories) are vicariously liable for the death if the death is a foreseeable consequence of the underlying inherently dangerous felony. If one of two co-felons kills the other during the commission or attempted commission of a dangerous felony, then this act will also constitute felony murder. If the co-felon is killed by a victim or a police officer, though, then the defendant is generally not guilty of felony murder.

Killing a Person

For a homicide to occur, a living person must die. A body need not be found; death can be established by circumstantial evidence. A person cannot be killed twice. Shooting a corpse is not homicide, but it can be a crime (e.g., abuse of a corpse). At common law, a fetus is not a living person.

Trust Amounts received generally

Generally, an amount received in exchange for trust property (e.g., proceeds from the sale of trust property) is allocated to principal. By contrast, an amount received for the use of trust property (e.g., rents received from tenants of trust property, interest received from a bank on trust funds deposited with the bank, cash dividends on stock owned by the trust) is allocated to income.

False Pretenses type of property

Generally, property that may be subject to larceny is also subject to false pretenses.

Evidence of Criminal Victim's Character by Prosecution

Generally, the prosecution may offer rebuttal evidence of the alleged victim's good character only after the defendant has introduced evidence of the alleged victim's bad character. Fed. R. Evid. 404(a)(2)(B). In a homicide case, the prosecution may also offer evidence of the alleged victim's trait for peacefulness to rebut evidence that the alleged victim was the first aggressor. Fed. R. Evid. 404(a)(2)(C).

Hearsay

Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Hearsay evidence generally is inadmissible unless it falls within an exception or exclusion set out in the Federal Rules, a federal statute, or a Supreme Court rule. Fed. R. Evid. 802.

Appropriation

If Congress explicitly mandates an allocation, distribution, or expenditure of funds, the President has no power to impound those funds (e.g., refuse to spend them or delay the spending). The President is permitted to exercise discretion if the authorizing legislation so provides. Train v. New York, 420 U.S. 35 (1975); Kendall v. United States, 37 U.S. 524 (1838).

Limited Partnership effect of failure to file

If a certificate of limited partnership is not filed, then the limited partnership is not formed. If a person makes a contribution to a purported limited partnership and erroneously believes in good faith that he has become a limited partner, then he is liable to a third party who transacts business with the purported limited partnership, believing in good faith that the person was a general partner at the time of the transaction. A similar result occurs when a person is mistakenly listed as a general partner in the certificate. RULPA304.

Defense violation of the plea bargain

If a defendant fails to abide by the plea agreement (e.g., fails to testify in another trial), then the prosecution can have the sentence vacated and reinstate the original charge. Ricketts v. Adamson, 483 U.S. 1 (1987).

Larceny repayment of debt

If a defendant takes property with the honest belief that she is entitled to the property as repayment of a debt (i.e., a claim of right), then larceny does not occur.

Defendant's perjured testimony

If a trial judge believes that the defendant perjured himself during the trial, then the judge may take this belief into consideration when determining the sentence.

Pour-over trust revocation

If both the trust and the will are revoked, so too is the pour-over trust. If only the trust is revoked, then the pour-over provision in the will must fail.

Trust and Executory interests

If someone other than the grantor holds an interest that is followed by either a vested remainder subject to divestment or a fee simple subject to an executory limitation, then that person holds an executory interest.

Recovery for limited partner derivative action

If the action is successful, the limited partner may receive an award for his reasonable expenses, including attorney's fees. The limited partnership is entitled to the remainder of the judgment proceeds.

Articles of correction

If the articles of incorporation contain an inaccuracy or were defectively executed, then articles of correction may be filed with the state to correct the inaccuracy or defect. RMBCA §1.24.

Trust and Remainder as class gift

If the class is vested as to some but still open so that others can join it, then new members partially divest the previous members of the class in order to share the property equally.

Larceny intent to borrow

If the defendant intends only to borrow the property with the ability to do so, then larceny does not occur because there is no intent to permanently deprive the owner of the property (e.g., borrowing a car to run an errand). If property is taken with the intent to return the property and is accidently damaged or destroyed, larceny has not occurred.

Defense Against Foreign Law - Substance vs. Procedure

If the foreign law sought to be applied is procedural, then the forum state's law will always govern. The forum state's law is applied to determine whether a law is substantive or procedural, so long as the result is not arbitrary or so unreasonable as to constitute a denial of due process or full faith and credit.

Full Faith and Credit for Foreign Judgments and Merger

If the judgment is final and the plaintiff won, then a merger of the plaintiff's cause of action into the plaintiff's judgment occurs. As a result, the defendant is prohibited from relitigating on the merits of the case.

Development of probable cause incident to arrest

If the officer conducting the stop develops probable cause, the officer may then make an arrest and conduct a full search incident to that arrest. If the stop involves a vehicle, the officer may search the passenger compartment and all containers therein, whether open or closed, if the arrestee is within reaching distance of the passenger compartment of the vehicle or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. See §I.C.4.a.4), Vehicle search incident to arrest, supra, discussing the Gant rule.

Failure to name a trustee

If the settlor fails to designate a trustee, then the court will appoint a trustee.

Corporate powers

In addition to specifying purposes, the articles of incorporation may enumerate powers that the corporation possesses. Most states automatically grant all corporations broad powers, such as the powers to buy and sell property and to sue and be sued. RMBCA §3.02. Some states place restrictions on various corporate actions, including corporate loans to officers and directors. For a corporation with stock listed on a national securities exchange, federal law prohibits the corporation from making personal loans to a director or an executive officer of the corporation. 15 U.S.C. § 78m.

Stock rights, options, and warrants

In addition to stock, a corporation may issue rights, options, or warrants to buy its stock. Generally, the board of directors has the authority to issue these instruments and to dictate their terms. RMBCA §6.24.

Criminal facilitation

In jurisdictions that have adopted the majority rule, a person encouraging or assisting a criminal who is not guilty of the crime itself as an accomplice may be guilty of a lesser crime, such as criminal facilitation.

Holographic Will - Handwritten Changes

Interlineations after the will is complete are effective in most jurisdictions that recognize holographic wills.

Intoxication and crime generally

Intoxication can be caused by any substance (e.g., alcohol, drugs, or prescription medicine). There are two types of intoxication defenses: voluntary and involuntary.

Conspiracy - termination

It is important to determine when a conspiracy ends for the purposes of determining the statute of limitations and the admissibility of acts or declarations made by the conspirators in furtherance of the crime. Generally, the act of concealing the conspiracy is not treated as a part of the conspiracy.

Forgery making

Making includes creating, altering, or fraudulently inducing another to sign a document when that person is unaware of the significance of the document. The defendant need not use the document; the crime is complete upon the "making" of the document. When property is acquired by use of the forged document, the defendant may also be guilty of another crime, such as false pretenses

Trustee self-dealing - statutory exceptions

Many states have enacted statutes permitting a bank trust department to deposit trust assets in its own banking department, and trustees are authorized to receive reasonable compensation for their services.

Obscenity and Minors

Material that appeals to the prurient interests of minors may be regulated as to minors, even if it would not be considered obscene to an adult audience. Ginsberg v. New York, 390 U.S. 629 (1968). The government may not, however, block adults' access to indecent materials in order to prevent them from reaching children. Reno v. ACLU, 521 U.S. 844 (1997).

Mayhem

Mayhem is a common-law felony battery that causes the dismemberment or permanent disfigurement of a person. It is the equivalent of modern statutory aggravated battery.

Medical records as business records

Medical records are considered business records to the extent that the entries relate to diagnosis or treatment. Statements related to fault associated with the cause of injury generally do not qualify under the business records exception.

Mens Rea

Mens rea is the requirement of a guilty mind or legally proscribed mental state that a defendant must possess to commit a crime. Except for strict liability crimes, a crime is committed when a criminal act (actus reus) is coupled with a guilty mind—both the mental and physical elements exist at the same time. Strict liability crimes have no mens rea requirement and require only an actus reus.

Breaks in questioning under Miranda

Miranda protections carry over when there is a break in the interrogation process attributed to a second police agency continuing an interrogation after the first police agency has stopped questioning the suspect.

Miranda and undercover cops

Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer. Illinois v. Perkins, 496 U.S. 292, 294 (1990).

Misprision

Misprision is a common-law misdemeanor that punishes a failure to report or the hiding of a known felon. The defendant must have (i) had full knowledge that the principal committed and completed the felony alleged, (ii) failed to notify the authorities, and (iii)taken an affirmative step to conceal the crime. U.S. v. Ciambrone, 750 F.2d 1416, 1417 (1986).

Mistake of fact and negation of intent

Mistake of fact may negate criminal intent but it must be an "honest mistake." The defense applies differently between specific- and general?intent crimes. Mistake of fact is never a defense to a strict-liability crime because strict-liability offenses do not have a mens rea.

Party-Controlled Choice of Law

Most courts will enforce a contractual choice-of-law provision if it is: i) A valid agreement with an effective choice-of-law clause; ii) Applicable to the lawsuit under the terms of the contract; iii) Reasonably related to the lawsuit (i.e., the law to be applied is from a state with connections to the parties or the contract); and iv) Not in violation of the public policy of the forum state or another interested state. Note that a state's legislature may restrict the power of contracting parties to choose a governing law.

Extortion - modern approach

Most jurisdictions have enacted statutes that more broadly define extortion as the taking of money or property from another by threat. In most jurisdictions, it is the making of threats (rather than the obtaining of the property) that is the essence of the crime. In a minority of jurisdictions, however, the accused must actually obtain the property to be guilty.

Modern trend for testamentary trusts

Most jurisdictions still respect the common-law distinction between "secret" and "semi-secret" trusts. However, the modern trend and that adopted by the Restatement (Third) of Trusts, § 18, calls for the imposition of a constructive trust in favor of the intended beneficiaries (if known) in both "secret" and "semi-secret" trust situations.

Obscenity and land-use

Narrowly drawn zoning ordinances may be used to restrict the location of certain adult entertainment businesses (e.g., adult theaters, adult bookstores, strip clubs) if the purpose of the regulation is to reduce the impact on the neighborhood of such establishments, but they may not be used to ban such establishments entirely. It does not matter that such establishments may be found in adjoining jurisdictions. Los Angeles v. Alameda Books, 535 U.S. 425 (2002); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

Obscenity and Child Pornography

Neither obscene speech nor child pornography is protected by the First Amendment Free Speech Clause. Roth v. United States, 354 U.S. 476 (1957).

Notice Probate

Notice probate is a formal judicial determination made after notice is given to interested parties. Any interested party can demand formal probate. A formal proceeding may be used to probate a will, to block an informal proceeding, or to secure a declaratory judgment of intestacy. Formal proceedings are final if not appealed.

Procedure for conversion to LP

Notwithstanding a contrary provision in the limited partnership agreement, the conversion must be approved by all of the general and limited partners. Once the conversion is approved, the limited partnership must cancel its certificate of limited partnership. The conversion takes effect upon the cancellation of that certificate. RUPA 903(b)-(d).

Trust mineral rights

Oil, gas, mineral, and water rights payments are also allocated as 10% income and 90% principal.

Criminal Defense - Self-Defense

One who is not the aggressor is justified in using reasonable force against another person to prevent immediate unlawful harm to himself. The harm to the defendant must be imminent, not a threat of future harm. The defendant can use only as much force as is required to repel the attack. Deadly force is force that is intended or likely to cause death or serious bodily injury. Deadly force may be justified in self-defense only when it is reasonably necessary to prevent death or serious injury or to prevent the commission of a serious felony involving a risk to human life. Nondeadly force is force that is not intended or likely to cause death or serious bodily injury and may be used to repel nondeadly force.

Charitable trusts exception

Only private trusts must have ascertainable beneficiaries. Because, by definition, charitable trusts exist for the good of the public at large, charitable trusts must not have individual ascertainable beneficiaries.

Political Discrimination

Partisan political gerrymandering may violate the Equal Protection Clause if the challenger can show "both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group." Davis v. Bandemer, 478 U.S. 109, 127 (1986). However, lack of comprehensive and neutral principles for drawing electoral boundaries as well as the absence of rules to confine judicial intervention can prevent adjudication of political gerrymandering claims. Vieth v. Jubelirer, 541 U.S. 267 (2004).

Defenses to Full Faith and Credit of Foreign Judgments - Penal

Penal judgments (cases in which the judgment is punishment for an offense against the public) do not have to be enforced.

Peremptory challenges

Peremptory challenges are requests by both parties during the voir dire jury-selection process to disqualify potential jurors without the need to show cause.

Pretextual automobile stop

Police may use a pretextual stop to investigate whether a law has been violated, even if they have no reasonable suspicion, provided that they have probable cause to believe that the law for which the vehicle was stopped has been violated. Whren v. United States, 517 U.S. 806 (1996) (seizure of illegal drugs constitutional even though police stopped a car for a traffic violation as a pretext to investigate a hunch that the occupants possessed drugs).

Open Fields Search

Private property that lies outside the curtilage of a home, such as a farmer's field, is not protected by the home's umbrella of Fourth Amendment protection. Under the "open fields" doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and "no trespassing" signs are posted. United States v. Oliver, 466 U.S. 170 (1984).

Search of containers within a car

Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for. However, if the police have probable cause to search only containers, they may search only that container, but not the entire car. California v. Acevedo, 500 U.S. 565, 570 (1991). This rule also applies to luggage found in a vehicle. Arkansas v. Sanders, 442 U.S. 753 (1979); California v. Acevedo, 500 U.S. 565, 570 (1991). (Note, however, that what the officers find in one container may give them probable cause to believe evidence is contained elsewhere in the car.)

Trust and gifts to heirs

Qualification as an heir is determined upon the death of the transferor or at the time of distribution.

Inheritance of personal property and choice of law

Questions regarding the transfer of personal property from someone who dies intestate or who has a will are governed by the law of the deceased's domicile at the time of death.

Rape - intent

Rape is a general-intent crime requiring only the intent to commit intercourse without the consent of the female. Intent is negated if a defendant reasonably believes that the victim's lack of resistance indicates consent.

Rape

Rape is: i) Unlawful; ii) Sexual intercourse; iii) With a female; iv) Against her will by force or threat of immediate force. Most modern statutes are gender-neutral and have replaced the force requirement with lack of consent.

Reciprocal Wills

Reciprocal wills are wills with identical or reciprocal provisions. Because reciprocal wills are separate, there is no contract between the parties to dispose of the property in a particular way, which means that either party can modify his will without knowledge of the other.

Public Trial - Public's Right

Regardless of the wishes of the defendant or prosecutor, a trial must be public unless there is either a substantial likelihood of prejudice to the defendant or a need to limit access to ensure an orderly proceeding. Press-Enterprise Co. v. Superior Court of CA (Press-Enterprise I), 464 U.S. 501, 509-10 (1984).

Religious Conduct

Religious conduct, on the other hand, is not absolutely protected. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test.

Rule 10b-5 - rescission

Rescission may be permitted if the defendant was involved in the transaction as a seller or buyer.

Private restrictions on stock transfer

Restrictions on the transfer of stock are generally found in closely held corporations. This is because owners of a closely held corporation often seek to maintain control over the corporation's business and profits by limiting the number of shareholders in a corporation. This limitation can be accomplished through restrictions on the transferability of shares.

Robbery

Robbery is: i) Larceny; ii) From the person or presence of the victim; iii) By force or intimidation.

Search and Government Action

Searches conducted by private citizens are not protected by the Fourth Amendment—there must be governmental action. However, the police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

Notice of shareholder meeting

Shareholders must be given notice of either type of meeting. To properly call a meeting, the corporation must notify all shareholders entitled to a vote at the special meeting in a timely manner. A shareholder may waive notice either in writing or by attending the meeting. Usually, notice must be given no less than 10 days and no more than 60 days before the meeting date. The notice must include the time, date, and place of the meeting. RMBCA §§ 7.05, 7.06.

Exceptions to Spousal Privilege

Spousal privileges are subject to limitations in cases in which one spouse is suing the other, or when one spouse is charged with a crime against the other spouse or the children of either. For example, a defendant-spouse accused of battery of a witness-spouse would not be able to prevent the witness-spouse from testifying as to confidential marital communications.

Separation of spouse under intestacy

Spouses who are separated, or are in the process of obtaining a divorce, remain spouses until the issuance of a final decree of dissolution of the marriage. Decrees of separation that do not terminate the status of husband and wife do not constitute a divorce. Unif. Probate Code § 2-802(a).

Offered to prove the truth of the matter asserted

Statements offered to prove something other than the truth of the matter asserted are not hearsay. A statement offered to prove that the statement was made, regardless of its truth, is not hearsay. A statement offered to show the effect on the person who heard it is not hearsay. A statement offered as circumstantial evidence of the declarant's mental state is not hearsay. A statement offered solely to impeach a witness is not being introduced for its truth and therefore is not hearsay (see III.B.4. Prior Inconsistent Statement, supra).

Defense Against Foreign law - Damages

States are split as to whether the measure of damages is procedural or substantive. The majority rule is that damages are substantive and measured by the law that governs the subject matter from which the damages arise.

Statutory rape

Statutory rape is sexual intercourse with a person under the age of consent. It is a strict-liability crime with respect to the age of the victim. Consent by the underage victim is not a defense. A defendant's reasonable mistake of fact concerning the victim's age is not a defense.

Shares reacquired by corporation

Stock authorized and issued by the corporation is known as "outstanding stock." Such stock may be reacquired by the corporation through purchase or redemption (i.e., stock acquired by a forced sale). Upon repurchase or redemption, that stock constitutes authorized but unissued shares. If the articles of incorporation prohibit the reissuance of stock, then the number of authorized shares is automatically reduced by the number of shares purchased. RMBCA §6.31.

Limitation on shareholder management agreement

Such an agreement cannot be entered into with respect to a corporation that has shares listed on a national securities exchange, and such an agreement ceases to be effective for a corporation when its shares are listed on such an exchange. RMBCA § 7.32(d).

Termination of partnership

Termination of a partnership is a two-step process—dissolution and winding up. The happening of an event triggers dissolution, the first step in the termination of a partnership. Next, the partnership must wind up its business, which is a process that entails liquidating the assets, paying off creditors, and distributing any remaining funds to the partners. The partnership is not terminated until the partnership business is wound up.

State alienage classifications

The Court will generally apply the strict scrutiny test and strike down state laws that discriminate against aliens, such as laws prohibiting aliens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs.

Dormant Commerce Clause

The Dormant Commerce Clause (sometimes referred to as the Negative Commerce Clause) is a doctrine that limits the power of states to legislate in ways that impact interstate commerce. The Commerce Clause (Article I, Section 8, Clause3) reserves to Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes"; as a corollary, individual states are limited in their ability to legislate on such matters.

Due Process Exception to Hearsay

The Due Process Clause of the Fourteenth Amendment may prevent application of a hearsay rule when such rule unduly restricts a defendant's ability to mount a defense.

Death penalty and defendant insanity

The Eighth Amendment prohibits states from inflicting the death penalty on a prisoner who is insane or can "demonstrate a severe mental disorder." Panetti v. Quarterman, 551 U.S. 930, 960 (2007).

Media and illegally obtain and private information

The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did. Bartnicki v. Vopper, 532 U.S. 514 (2001). Similarly, the First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern. See Florida Star v. BJF, 491 U.S. 524 (1989); Cox Broadcasting v. Cohn, 420 U.S. 469 (1975).

The Fourth Amendment

The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." This amendment protects persons against unreasonable arrests or other seizures as well as unreasonable searches. In addition, when a warrant is required, it must comply with these constitutional requirements.

Free Exercise Clause

The Free Exercise Clause of the First Amendment has been construed to include two freedoms: the freedom to believe and the freedom to act. The degree of protection that individuals are afforded from governmental interference in religion depends on whether religious belief or conduct is involved.

Full Faith and Credit Clause

The Full Faith and Credit Clause of Article IV, Section 1 provides that "[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state."

Model Prudent Man Investment Act

The MPMIA, first adopted in 1940, is still followed in some states and permits any investment that a prudent man would make, barring only speculative investments.

Private Express Trust - failed gifts

The Restatement (Third) of Trusts rejects the argument that a failed gift can be saved by a re-characterization of the donor's intent.

Type of proceedings where Sixth Amendment applies

The Sixth Amendment provides a constitutional right to counsel in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended. Scott v. Illinois, 440 U.S. 367 (1979); Alabama v. Shelton, 535 U.S. 654 (2002).

Sixth Amendment

The Sixth Amendment provides that the accused shall have the right to a public trial, the right to confront witnesses against him, the right to cross-examine witnesses, the right to be present at his own trial, and the right to "the assistance of counsel for his defense." The right to assistance of counsel encompasses not only the right to hire private counsel, but also the right to be provided with counsel without charge if the accused is unable to afford counsel.

LLC Authority

The ULLC does not provide statutory apparent authority and instead relies on agency law principles. ULLCA § 110(a)(1), (3). Members of a member-managed LLC have broad authority to bind the LLC similar to that of a partner in a general partnership. ULLCA § 301(a). Each member has equal rights with respect to the management of the LLC. Unless the operating agreement otherwise provides, an act outside the ordinary course of the activities of the company may be undertaken only with the consent of all members. ULLCA § 407(b)(4). Members of a manager-managed LLC do not have authority to bind the LLC. Matters relating to the activities of the company are decided exclusively by the managers. ULLCA § 407(c)(1).

Right to confrontation at trial

The accused has the right to directly encounter adverse witnesses, to cross-examine adverse witnesses, and to be present at any stage of the trial that would enable the defendant to effectively cross-examine adverse witnesses as guaranteed by the Sixth and Fourteenth Amendments. Not only does this right allow the defendant to cross-examine the adverse witness, but it also allows the defendant to observe the demeanor of the adverse witness. A witness may invoke the right against self-incrimination; however, such an invocation after testimony has already been made may violate the defendant's right to confrontation, guaranteed by the Sixth and Fourteenth Amendments, because the witness's invocation will prevent adequate cross-examination by the defendant. If the defendant was instrumental in preventing a witness from testifying, then he forfeits his right to confrontation.

Larceny constructive possession

"Constructive possession" means legal possession when factual possession does not exist. An owner has constructive possession of property when actual possession, but not title, is taken from her by fraud. The crime is called "larceny by trick."

Mens rea - knowingly or willfully

"Knowingly" or "willfully" requires that the defendant be aware that his conduct is of the nature required by the crime or that circumstances required by the crime exist. In other words, the defendant must be aware or know that the result is practically certain to occur based on his conduct. MPC § 2.02(2)(b).

Mens rea - recklessly

"Recklessly" requires the defendant to act with a conscious disregard of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a law-abiding person. MPC § 2.02(2)(c). Mere realization of the risk is not enough.

Capable of repetition, yet evading review

A case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subjected to the same action again ("capable of repetition") but that the action will not last long enough to work its way through the judicial system ("yet evading review"). Turner v. Rogers, 564 U.S. 431 (2011).

Limited Partnership incomplete certificate

A certificate need only substantially comply with statutory requirements in order to have effect as to third parties. RULPA 201(b).

Change of Domicile

A change of domicile takes place when a person with capacity to change his domicile is physically present in a place and intends to make that place home, at least for the time being. The physical presence and the intent must concur.

Search to find witnesses

A checkpoint maintained by police for the purpose of finding witnesses to a crime (rather than suspects) is not per se unreasonable, as long as (i) the checkpoint stop's primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle's occupants but other individuals; (ii) the stop advanced a public concern to a significant degree; and (iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment. Illinois v. Lidster, 540 U.S. 419 (2004).

Partial Integration under Parol Evidence Rule

A contract that contains some, but not all, of the terms to which the parties agreed is a partial integration. In this case, extrinsic evidence that adds to the writing may be admitted. Evidence that contradicts the writing may not be admitted.

Defendant's Fifth Amendment

A defendant who wishes to invoke the privilege simply invokes it by not taking the stand. Included in this right is the state's inability to compel the defendant to testify. The prosecution cannot bring the defendant's failure to take the stand to the jury's attention.

Homicide Independent cause

A defendant's act will not be deemed the cause of death when a victim is killed by an independent cause before the defendant's act can kill the victim. Additionally, a victim's preexisting condition that predisposes him to death does not break the chain of causation.

Rule 10b-5 materiality

A defendant's conduct must involve the misuse of material information. A fact is material if a reasonable investor would find the fact important in deciding whether to purchase or sell a security. Basic, Inc. v. Levinson, 485 U.S. 224 (1988).

Denial of Counsel and Nontrial Proceedings

A denial of counsel at a nontrial proceeding, such as a lineup, is subject to harmless-error analysis. United States v. Wade, 388 U.S. 218, 223 (1967).

Qualifications of a trustee

A named trustee must have the capacity to acquire and hold property for his own benefit and the capacity to administer the trust. Minors or insane persons will not qualify as trustees, as although they can hold property they cannot administer it. Additionally, those eligible to serve as trustees may be limited by statute.

Ripeness

"Ripeness" refers to the readiness of a case for litigation. A federal court will not consider a claim before it has fully developed; to do so would be premature, and any potential injury would be speculative. For a case to be "ripe" for litigation, the plaintiff must have experienced a real injury (or imminent threat thereof). Hence, if an ambiguous law has a long history of non-enforcement, a case challenging that law may lack ripeness. See Poe v. Ullman, 367 U.S. 497 (1961).

Criminal Battery - Unlawful

"Unlawful" means that the force is applied without legal excuse. Excessive use of force by a police officer during an arrest is unlawful.

Types of specific intent crimes

(1) First-degree murder; (2) Inchoate offenses (attempt, solicitation, conspiracy); (3) Assault with intent to commit a battery; and (4) Theft offenses (larcency, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery).

Section 16(b) prima facie

(1) applicable corporations, (2) corporate insiders, (3) short-swing profits, (4) reporting.

Exceptions to Eleventh Amendment Limits on Article III

(1) consent, (2) injunctive relief, (3) damages to be paid by an individual, (4) prospective damages, and (5) congressional authorization.

Model Penal Code mens rea types

(1) purposely, (2) willfully or knowingly, (3) recklessly, (4) negligently.

Testamentary Intent

(1) understand the nature of the act, (2) know and approve, and (3) integration of all pages present at execution.

Acceptance of trusteeship

A person designated as a trustee can accept the position: i) By substantially complying with a method of acceptance provided for in the terms of the trust; or ii) If the terms of the trust do not provide a method of acceptance, or the method is not made exclusive, by accepting delivery of the trust property, exercising powers as a trustee, performing duties as a trustee, or otherwise indicating acceptance of the trusteeship.

Criminal Defense - Defense of others

A person has the right to defend others under the same circumstances in which self-defense would be acceptable. Defense of others is not limited to defending family members but extends to anyone the defendant reasonably believes has the right of self-defense.

Waiver by Surviving Spouse

A spouse may waive in whole or in part, before or during the marriage, the right to receive any of the following from the estate of his spouse: i) Property that would pass by intestate succession or by testamentary disposition in a will executed before the waiver; ii) Homestead, exempt property, or family allowances; iii) The right to take the share of an omitted spouse; or iv) The right to take against the testator's will.

Freedom of Association and primary elections

A state cannot require a local political party to select presidential electors in an open primary (i.e., a primary in which any voter, including members of another party, may vote) when the national party prohibits nonparty members from voting. Democratic Party v. LaFolette, 450 U.S. 107 (1981). A state can require a semi-closed primary system, in which only registered party members and independents can vote in the party's primary, even if the party wants to permit anyone to vote. Clingman v. Beaver, 544 U.S. 581 (2005). On the other hand, a state may not prohibit a political party from allowing independents to vote in its primary. Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986).

Voting trust

A voting trust constitutes a separate legal entity to which the shareholders' stock is transferred. Although the shareholders retain beneficial ownership of their shares, legal ownership is transferred to the trustee, who votes the shares and distributes the dividends in accordance with the terms of the trust. The trustee owes a fiduciary duty to the trust and the beneficial owners of the stock. A voting trust must be in writing, it is limited to 10 years, and the trust instrument must be filed with the corporation. RMBCA § 7.30.

Age classifications

Age discrimination in violation of the Age Discrimination in Employment Act of 1967 does not provoke heightened scrutiny; laws and other governmental actions classifying on the basis of age are reviewed under the rational basis standard. See, e.g., Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) (police officers may be forced to retire at age 50, even if they are as physically fit as younger officers).

Creditor Claim on Estate - Priority

All jurisdictions have statutes that provide the order in which expenses and debts are to be paid: i) Administrative expenses; ii) Last medical expenses and funeral expenses; iii) Family allowance; iv) Tax claims; v) Secured claims; vi) Judgments against the decedent; and vii) All other claims.

Partnership property ownership

All property acquired by a partnership, whether by contribution from a partner or by purchase or other transfer from a partner or a third party, is partnership property and belongs to the partnership, not to the individual partners. RUPA 101(11), 203. A partner cannot transfer an ownership interest in partnership property, voluntarily or involuntarily. RUPA 501. Although the intent of the partners is determinative as to ownership, there are several statutory rules for titled property that are keyed to the title itself.

Authentication of tangible evidence

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. This is a lesser standard than a preponderance of the evidence. Fed. R. Evid. 901(a).

Certiorari

Almost all cases now come to the Supreme Court by way of a petition for a writ of certiorari, i.e., discretionary review. The Court takes jurisdiction only if at least four Justices vote to accept the case (the "rule of four").

Anti-Lapse Statute

Almost all states have enacted anti-lapse statutes providing for alternate disposition of lapsed bequests. Under the majority of the statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary. Most statutes require that the devisee who failed to survive was a grandparent, descendant of a grandparent, or a stepchild of the testator. Unif. Probate Code § 2-603. Most jurisdictions allow the statute to apply only to testamentary gifts. Under the UPC, however, the statute may also apply to nonprobate transfers. Unif. Probate Code §§ 2-706; 2-707.

Assignee standing

An assignee of a claim has standing to enforce the rights of an assignor, even when the assignee is contractually obligated to return any litigation proceeds to the assignor (e.g., an assignee for collection), provided the assignment was made for ordinary business purposes and in good faith. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269 (2008).

Assignee as limited partner

An assignee of a limited partnership interest, including a general partnership interest, may become a limited partner if the partnership agreement permits it or if all partners agree. An assignee becomes liable for obligations of the assignor to make and return contributions known to the assignee at the time he became a limited partner, but the assignor is not released from those obligations or from obligations arising from false statements in the certificate of limited partnership. RULPA 704.

Criminal Attempt

An attempt requires: i) A substantial step toward the commission of a crime; coupled with ii) The specific intent to commit the crime. If the crime is successfully completed, the attempt is merged into the completed crime.

Corporate employees

An employee who is not an officer is an agent of the corporation and is subject to the responsibilities of an agent. In turn, the employee is owed duties by the corporate principal. As an agent, the employee has the ability to act on behalf of the corporation to the extent of the employee's authority and is usually protected as an agent from liability for actions undertaken in accordance with that authority.

Workers' Compensation and Contractual Choice-of-Law

An employer and employee may agree as part of the employment contract that a certain state's workers'-compensation laws will govern. Such agreement will generally be upheld so long as it is reasonable and does not violate the public policy of another state that has a legitimate interest.

Ex Parte Divorce

An ex parte divorce is a divorce based on the domicile of only one of the spouses. For an ex parte divorce to be afforded full faith and credit, it must adhere to the subject-matter jurisdiction rules, namely that at least one person must reside in the state. Personal jurisdiction must exist over one spouse. The difference between a bilateral divorce and an ex parte divorce is that in an ex parte divorce, full faith and credit is not given to other marital agreements such as property rights, alimony, and child custody. However, a divorce order dealing with property rights, alimony, or custody will be binding if the nondomiciled spouse agrees. A bilateral divorce decree will generally receive full faith and credit with regard to such matters.

Duplicates and copies of wills

Duplicate originals are two copies of the same will executed in the same manner, each complying with the same formalities. A duplicate original may be admitted to probate. A copy of a will, such as a photocopy, cannot itself be admitted to probate, although it may be used as proof of testamentary intent in the case of a lost or missing will.

Will Fraud

Fraud, like undue influence, must have been present when the will was executed. The burden of proving fraud is on the contestant. The misrepresentation must be made by the beneficiary with both: i) The intent to deceive the testator; and ii) The purpose of influencing the testamentary disposition. The result must be a will that would not have been executed but for the fraud.

Derivative action - effect of board rejection of demand

If the board specifically rejects the demand, then the rejection is tested against the business judgment rule. If there is a business justification for the rejection, then the plaintiff must establish that the board's rejection was due to a lack of care, loyalty, or good faith to persuade the court to override the board's refusal. Findley v. Garrett, 240 P.2d 421 (Cal. 1952).

Waiver of shareholder rights

If the corporation elects to have preemptive rights, then a shareholder may waive that right. A waiver evidenced by a writing is irrevocable, regardless of whether it is supported by consideration. RMBCA § 6.30(b)(2).

Conspicuously noted requirement of stock sale restriction

If the corporation issuing the shares imposes a restriction on transferability, the stock certificate must contain either a full and conspicuous statement of the restriction or a statement that the corporation will provide a shareholder with information about the restriction upon request and without charge. RMBCA §6.27(b).

Bilateral Divorce

If the court has personal jurisdiction over both spouses and at least one spouse is domiciled in the state, then the divorce judgment will be a valid bilateral divorce and will be entitled to full faith and credit.

Lost Wills

If the decedent had possession of her original will before her death, but the will is not found among her personal effects after death, jurisdictions are split as to whether a rebuttable presumption arises that the decedent destroyed the will with the intent to revoke it.

Denial of Counsel and guilty plea

If the defendant has pleaded guilty at a preliminary hearing, without being given the opportunity to have counsel, then the defendant has the right to withdraw the plea, and it may not be used against the defendant as an evidentiary admission. White v. Maryland, 373 U.S. 59, 60 (1963).

Determination of death for intestacy

In most instances, death can be determined based upon the irreversible cessation of circulatory and respiratory functions. The modern standard redefines death as brain death. There are no established criteria for brain death, but the court will require that the determination of death under either the modern or the common-law standard adhere to the usual and customary standards of medical practice.

Contract Not to Revoke Will

In most jurisdictions, and under the UPC, the mutual execution of a joint or mutual will does not create a presumption of a contract not to revoke the will. Unif. Probate Code § 2-514. However, if a contract not to revoke is proved, and the second party attempts to make an inter vivos transfer not in accordance with the contract, or attempts to revoke her will after accepting the benefits under the first party's will, then a constructive trust may be imposed for the benefit of the original beneficiaries. In a joint will contract, on the death of one party, the transaction is said to become an irrevocable contract as to the survivor.

Incest

In most jurisdictions, incest is marriage or sexual acts between persons that are too closely related. However, there is no uniformity in classifying the degree of relationship. While some states restrict incest to blood relatives, many other states extend the felony to non-blood relatives as well.

Piercing the corporate veil - totality of the circumstances

In most jurisdictions, no bright-line rule exists for piercing the corporate veil, and courts look at the "totality of circumstances." Courts generally look to whether the corporation is being used as a "façade" for a dominant shareholder's personal dealings (i.e., whether the corporation is an "alter ego" of the shareholder). Additionally, courts look to whether there is "unity of interest and ownership" between the entity and the members to ensure that the corporation in fact did not have an existence independent of the members. In general, a plaintiff must prove that the incorporation was merely a formality and that the corporation neglected corporate formalities and protocols, such as voting to approve major corporate actions in the context of a duly authorized corporate meeting. This is often the case when a corporation facing legal liability transfers its assets to another corporation with the same management and shareholders. It also happens most often with single-person or small, closely held corporations that are managed in a haphazard manner.

Advance Healthcare Directives - Authority of an agent

In most states, a healthcare power of appointment, unlike a typical power of appointment, is durable; that is, the agent's power to act on the principal's behalf is not terminated by the incapacity of the principal. Under the UHCDA, a healthcare agent's authority becomes effective only upon the incapacity of the principal and ceases to be effective upon the recovery of capacity by the principal. UHCDA § 2. An agent must make a healthcare decision in accord with the principal's instructions or other known wishes. If such instructions do not exist, then the agent must make decisions in accordance with the agent's determination of the principal's best interest. UHCDA § 2.

Rule 10b-5 reliance

To maintain a Rule 10b-5 action, a plaintiff must establish that he relied on the defendant's fraudulent conduct. However, when the defendant's fraudulent conduct is not aimed directly at the plaintiff, such as if the defendant issues a press release, then courts have permitted the plaintiff to establish reliance by finding that the defendant's conduct constituted a fraud on the market. Basic, Inc. v. Levinson, 485 U.S. 224 (1988).

Payment of consideration for stock

When the corporation receives consideration for stock, the stock is deemed fully paid and non-assessable. RMBCA §6.21(d). A shareholder who fails to pay the consideration is liable to the corporation, and any issued stock may be canceled. If stock has not been fully paid, then the corporation or a creditor of the corporation may be able to recover the unpaid amount from the shareholder. RMBCA §6.22(a).

Accomplice to reckless or negligent crimes

When the crime committed by the principal only requires the principal to act recklessly or negligently (e.g., involuntary manslaughter), a person may be an accomplice to that crime under the majority rule if the person merely acts recklessly or negligently with regard the principal's commission of the crime, rather than purposefully or intentionally. See Model Penal Code § 2.06(4).

Enforcement of fruit of the poisonous tree

When the defendant challenges a confession or the admissibility of evidence, by right, a hearing is held to determine whether the confession or evidence is fruit of the poisonous tree. This hearing is held outside the presence of the jury. The defendant has a right to testify at this hearing, and the state bears the burden of establishing admissibility by a preponderance of the evidence.

Right of beneficiaries and creditors to trust distribution

It is the beneficiary's right to receive income or principal from the trust. Various devices have been developed to protect the trust property (and thus the beneficiary's interest) from creditors. Generally speaking, however, once trust property has been distributed to the beneficiary, any attempt to restrain the transferability of the beneficiary's interest will be invalid.

Legislative Veto

It is unconstitutional for Congress to attempt a "legislative veto" of an executive action—that is, to retain direct control over the actions of an executive agency, rather than going through the proper channels of passing a bill.

Due Process - poll tax

Payment of a fee in order to vote (i.e., a poll tax) in an election for federal office is prohibited by the Twenty-Fourth Amendment. More broadly, the imposition of a poll tax in order to vote in any election violates the Equal Protection Clause, as a poll tax is unrelated to voter qualifications. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

Government speech

When the government itself speaks, it is not constrained by the Free Speech Clause of the First Amendment. Therefore, government speech (public service announcements, agricultural marketing campaigns, etc.) need not be viewpoint-neutral. Johanns v. Livestock Mkt'ing Ass'n, 544 U.S. 550 (2005). This Government Speech Doctrine, however, is subject to the requirements of the Establishment Clause (See §XVII.A., supra).

Trust and possibility of reverter

When the grantor conveys a fee simple determinable estate, he is deemed to have retained a possibility of reverter, wherein the right to possession reverts to the grantor, and the fee simple estate automatically ends, upon the happening of a specified condition or event.

Trust and right of entry

When the grantor conveys a fee simple estate subject to a condition subsequent, then upon the happening of the condition subsequent, the grantor is deemed to have retained the right to enter or retake possession, but the fee simple does not end automatically.

Actions not barred by the Eleventh Amendment

1) Actions against local governments: The Eleventh Amendment applies only to states and state agencies. Local governments (e.g., counties, cities) are not immune from suit. 2) Actions by the United States government or other state governments not barred: The Eleventh Amendment has no application when the plaintiff is the United States or another state. 3) Bankruptcy proceedings: The Eleventh Amendment does not bar the actions of a Bankruptcy Court that impacts state finances. Central Cmty. Coll. v. Katz, 546 U.S. 356 (2006).

Public Forum Regulation

A "public forum" may be traditional or designated. Traditional public forums are those that are historically associated with expression, such as sidewalks, streets, and parks. A designated (or limited) public forum is one that has not historically been used for speech-related activities, but which the government has opened for such use, such as civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use afterhours. The practical difference between the two is that the government can change a designated forum to a nonpublic forum, but it cannot do the same with a traditional forum. In either type of public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions: i) Are content-neutral as to both subject matter and viewpoint (i.e., it is not necessary to hear what is said in order to apply the regulation); ii) Are narrowly tailored to serve a significant governmental interest; and iii) Leave open ample alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781 (1989). However, additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest, i.e., only if they satisfy strict scrutiny. United States v. Grace, 461 U.S. 171 (1983). Restrictions that are not content-neutral are also subject to strict scrutiny (see § XVIII.C., Regulation of Content, infra).

"Secret" trust

A "secret" trust is not a testamentary trust. It looks like a testamentary gift, but it is created in reliance on the named beneficiary's promise to hold and administer the property for another. The intended beneficiary is permitted to present extrinsic evidence to prove the promise. If the promise is proven by clear and convincing evidence, then a constructive trust is imposed on the property for the intended beneficiary, so as to prevent the unjust enrichment of the "secret" trustee.

"Semi-secret" trust

A "semi-secret" trust is also not a testamentary trust. A semi-secret trust occurs when a gift is directed in a will to be held in trust, but the testator fails to name a beneficiary or specify the terms or purpose of the trust. In this situation, extrinsic evidence may not be presented, the gift fails, and a resulting trust is imposed on the property to be held in trust for the testator's heirs.

Terry Stop

A "stop" (also known as a "Terry stop") is a limited and temporary intrusion on an individual's freedom of movement short of a full custodial arrest. Merely approaching a person, but not restricting the person's movement in any way, does not constitute a detention. A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in criminal activity. Terry v. Ohio, 392 U.S. 1 (1968). Whether reasonable suspicion exists is based on the totality of the circumstances. It requires more than a vague suspicion, but less than probable cause, and it need not be based on a police officer's personal knowledge. Reasonable suspicion can be based on a flyer, a police bulletin, or an informant's tip, but only if the tip is accompanied by sufficient indicia of reliability. United States v. Hensley, 469 U.S. 221, 233-34 (1985). A police officer's reasonable mistake of law can support reasonable suspicion to conduct a traffic stop. Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530 (2014). In addition, a police officer's reasonable mistake of law can support reasonable suspicion to conduct a traffic stop. Heien v. North Carolina, 574 U.S. ___, 135 S. Ct. 530 (2014).

Fruits of a tainted confession - second confession

A Miranda violation does not automatically require the suppression of incriminating statements made by the defendant after receiving Miranda warnings. Oregon v. Elstad, 470 U.S. 298 (1985). However, a second confession may be suppressed when the circumstances indicate that the substance of Miranda has been drained away. For a plurality of the court, the test is an objective one—a reasonable person in the suspect's position would not have understood the Miranda warnings to convey a message that the suspect retained a choice about whether to remain silent. For the justice who cast the deciding vote (Justice Kennedy), the test is a subjective one—did the police act with an intent to circumvent the purpose of the Miranda warnings. Miranda; Missouri v. Siebert, 542 U.S. 600, 611 (2004).

Rule 10b-5 - fraudulent conduct

A Rule 10b-5 action requires fraudulent or deceptive conduct by the defendant in connection with the sale or purchase of a security. The defendant can engage in such conduct by (i) making an untrue statement of a material fact or (ii) failing to state a material fact that is necessary to prevent statements already made from being misleading.

Defense Against Foreign Law - Statute of Frauds

A Statute of Frauds is considered substantive rather than procedural. Questions regarding the Statute of Frauds are controlled by the law of the state that governs the validity of the contract. See § II.C.2 Contracts, supra.

Mootness

A case has become moot if further legal proceedings would have no effect; that is, if there is no longer a controversy. A live controversy must exist at each stage of review, not merely when the complaint is filed, in order for a case to be viable at that stage.

Terry Stop limits on time, place, and investigative method

A Terry stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short time. Police may stop the person, question him for a limited period of time, and frisk him for weapons only, not evidence. Police also can require that the detained person identify himself. Failure to comply with this request can result in the arrest of the detained person. After the conclusion of a traffic stop, absent reasonable suspicion, police extension of the stop in order to conduct a dog sniff violates the Fourth Amendment's protection against unreasonable seizures. Rodriguez v. United States, 575 U.S. ____, 135 S. Ct. 1609 (2015). When police hold a suspect beyond the amount of time necessary to effectuate the purpose of a Terry stop, the seizure becomes an arrest and must be supported by probable cause.

Totten Trusts

A Totten trust is not a true trust because there is no separation of legal and equitable title. Rather, it is a designation given to a bank account in a depositor's name as "trustee" for a named beneficiary. During the depositor's lifetime, the depositor retains control of the passbook and the ability to make deposits and withdrawals. A Totten trust can be revoked by any lifetime act manifesting the depositor's intent to revoke, or by will. In this way, a Totten trust is distinguishable from a joint bank account, the proceeds of which pass by law at the death of one joint tenant to the other.

Totten trusts

A Totten trust is not a true trust because there is no separation of legal and equitable title. Rather, it is a designation given to a bank account in a depositor's name as "trustee" for one or more named beneficiaries. During the depositor's life, the depositor retains complete control of the account, including the ability to make deposits and withdrawals for the depositor's own benefit, and the amount in the account is subject to the claims of the depositor's creditors. During the depositor's life, the beneficiary has no rights in the account. A Totten trust can be revoked by any lifetime act manifesting the depositor's intent to revoke, or by will. Because the amount in a Totten trust can be devised, a Totten trust is distinguishable from a joint bank account, the proceeds of which pass by law at the death of one joint tenant to the other. If the depositor does not devise the amount in a Totten trust, it passes to the named beneficiaries.

Larceny bailee possession

A bailee is guilty of larceny if, with intent to steal, the bailee opens and takes property from closed containers belonging to the bailor. Otherwise, the bailee simply has possession.

Life Insurance

A beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds are not part of the decedent's estate, unless they are payable to the decedent's estate as beneficiary. In most states, life insurance proceeds are payable to the beneficiary named in the beneficiary-designation form filed with the insurance company, even if the insured names a different beneficiary in a later-executed will. This rule is typically justified as a matter of contract: life insurance policies generally provide that policy proceeds will be paid only to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract. See, generally, Cook v. Equitable Life Assurance Soc'y of the U.S., 428 N.E.2d 110 (Ind. 1981).

Undue Influence by beneficiary

A beneficiary who is shown to have exerted undue influence is treated as having predeceased the testator to the extent that the gift to her exceeds her intestate share of the testator's estate.

Spendthrift Trust exceptions

A beneficiary's creditors usually cannot reach the beneficiary's trust interest in satisfaction of their claims if the governing instrument contains a spendthrift clause prohibiting a beneficiary's creditors from attaching the beneficiary's interest. Although generally valid, most states allow certain classes of creditors to reach a beneficiary's assets, notwithstanding the spendthrift clause. The spendthrift clause exception applies to: i) Children and spouses entitled to support; ii) Those providing basic necessities to the beneficiary; and iii) Holders of federal or state tax liens. Additionally, courts will not enforce spendthrift clauses if the settlor is also the beneficiary, because this would provide an easy way for individuals to avoid their creditors. When the settlor of a trust is also a trust beneficiary, his creditors are entitled to the maximum amount that could be distributed from the trust to the settlor, even when withdrawals are discretionary or limited by a support standard. If it is unclear whether the settlor is also the beneficiary, the courts will examine who provided the consideration for the creation of the trust.

Trusts and Alienation

A beneficiary's equitable interest in trust property is freely alienable unless a statute or the trust instrument limits this right. Because a transferee cannot have a greater right than what was transferred to him, any transferee from a beneficiary, including a creditor, takes an interest identical to what was held by the beneficiary. Unless otherwise provided by statute or under the trust instrument, a beneficiary's equitable interest is also subject to involuntary alienation. A beneficiary's creditors may reach trust principal or income only when such amounts become payable to the beneficiary or are subject to her demand.

Bill of Attainder

A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial. Article I, Sections 9 and 10 forbid the federal government and the states, respectively, from enacting such "legislative trials." It applies only to criminal or penal measures. Barring particular individuals from government employment qualifies as punishment under the prohibition against bills of attainder. United States v. Lovett, 328 U.S. 303 (1946).

Business record lack of trustworthiness

A business record that otherwise qualifies under this hearsay exception is nevertheless inadmissible if the opponent shows that the source of information for the record or the method or circumstances of its preparation indicate a lack of trustworthiness. Fed. R. Evid. 803(6)(E).

Due Process - Public Office and filing fee

A candidate for elected public office generally may be required to pay a reasonable filing fee, but an exorbitant filing fee, such as one that imposes the entire cost of the election on the candidates, is unconstitutional. Moreover, alternative provisions must be made for a candidate who is unable to pay the fee. Lubin v. Parish, 415 U.S. 709 (1974); Bullock v. Carter, 405 U.S. 134 (1972).

Issue of married parents

A child of a marriage is presumed to be the natural child of the parties to the marriage. A child conceived before but born after the death of his mother's husband is a posthumously born child. In most jurisdictions, a rebuttable presumption exists that the child is the natural child of the deceased husband if the child is born within 300 days of the husband's death. A posthumously born child born more than 300 days after the husband's death has the burden of proving that he is the deceased husband's natural child.

Legitimation and Choice of Law

A child who was born illegitimate may, by force of law, become legitimate through the marriage of her parents or if the child's parent acknowledges the child as his own. A child will usually be legitimate if this would be the child's status under the local law of the state where either (i) the parent was domiciled when the child's status of legitimacy is claimed to have been created, or (ii) where the child was domiciled when the parent acknowledged the child as his own.

Codicils

A codicil is a supplement to a will that alters, amends, or modifies the will, rather than replacing it. A codicil must be executed with the same formalities as a will. A validly executed codicil republishes the will as of the date of the codicil and may even validate an invalid will if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will. Courts look to the intent of the testator to determine whether to read the provisions of the will as having been republished as of the date of the codicil. A holographic codicil to an attested will and an attested codicil to a holographic will are valid.

Due Process and property generally

A cognizable property interest involves more than an abstract need or desire; there must be a "legitimate claim of entitlement" by virtue of statute, employment contract, or custom. Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (non-tenured professor with a one-year contract had no liberty or property interest in being rehired). The rights to government-issued licenses and continued welfare and disability benefits are legitimate property interests. For example, although a patient may have a legitimate property interest in the continued receipt of medical benefits to pay for the patient's stay in a qualified nursing home, there is no legitimate property interest in the patient's continued residence in the nursing home of the patient's choice. As a result, a patient is not entitled to a hearing before the government disqualifies a nursing home from participating in a public benefits program. O'Bannon v. Town Court Nursing Ctr., 447 U.S. 773 (1980).

Res Gestae

A common-law hearsay exception labeled "res gestae" (meaning "things done") existed for a statement that was precipitated by an event or was about a contemporaneous condition. The Federal Rules do not contain a general res gestae exception but instead recognize several distinct, related exceptions, including exceptions for a present sense impression; an excited utterance; a dying declaration; a statement of mental, emotional, and physical condition; and a statement made for purposes of medical treatment or diagnosis.

Attorney-Client Privilege

A confidential communication between a client and an attorney for the purpose of seeking legal advice or representation is privileged.

Types of director self-dealing

A conflict-of-interest transaction is any transaction between a director and his corporation that would normally require approval of the board of directors and that is of such financial significance to the director that it would reasonably be expected to influence the director's vote on the transaction. RMBCA §8.60(1)-(2). The interest involved can be direct or indirect, but it must be financial and material. The standard of determining whether the interest is material is objective and calls upon the trier of fact to determine whether a reasonable director in similar circumstances would have been influenced by the financial interest when voting on the matter. MBCA § 8.60 cmt. 4.

Remedies for director self-dealing

A conflict-of-interest transaction that is not protected by a safe?harbor provision may be enjoined or rescinded. In addition, the corporation may seek damages from the director. RMBCA §8.61.

Prosecution of other conspirators

A conspirator cannot be convicted of conspiracy if all other conspirators are acquitted at the same trial. In other circumstances, such as when co?conspirators are never tried or apprehended, a conspirator may be convicted of conspiracy if the prosecution proves the existence of a conspiracy.

Constructive insiders

A constructive insider is a person who has a relationship with the corporation that gives that person access to corporate information not available to the general public. Such individuals include lawyers, accountants, consultants, and other independent contractors.

Constructive Trust and Will Fraud

A constructive trust can be imposed upon the defendant to rectify any alleged fraud or undue influence perpetrated upon the testator. A constructive trust is sometimes said to be a fraud-rectifying trust. However, a constructive trust may also be imposed when no fraud is involved but the court believes that unjust enrichment would result if the defendant retained the property.

Effect of a conversion on partnership

A conversion of a partnership to a limited partnership, or a limited partnership to a partnership, does not affect the resulting partnership or limited partnership as an entity. Property owned by the partnership or limited partnership before the conversion remains vested in the resulting partnership. Legal proceedings by or against the preconversion partnership or limited partnership can continue as if the conversion had not occurred. RUPA 904.

Remedy for illegal identification

A conviction as the result of a trial in which an illegal identification was admitted will be overturned unless, under the doctrine of harmless error, the appellate court is convinced beyond a reasonable doubt that the improperly admitted identification did not contribute to the verdict.

Section 16(b) action

A corporate insider can be forced to return short-swing profits to the corporation through a Section 16(b) action. An insider's reasons for trading are immaterial. Even an insider who does not possess nonpublic material information must return short?swing profits.

Section 16(b) reporting

A corporate insider is required to report a change in his stock ownership to the SEC to encourage compliance with the short-swing profits rule.

Conspiracy and corporations

A corporation can conspire with its own agents with some limitations. In some jurisdictions, there can be no conspiracy between a corporation and a single agent of that corporation. A conspiracy between the corporation and multiple agents of the same corporation may, in most jurisdictions, satisfy the plurality requirement. A corporation or its agents can enter into a conspiracy with another corporation or agents of that corporation.

Nonpayment of stock subscription by subscriber

A corporation can pursue normal collection methods when a subscriber fails to pay the subscription amount. In addition, the corporation can sell the stock to someone else, provided the corporation has made a written demand for payment and given the subscriber at least 20 days to comply with the demand. RMBCA §6.20(d).

Qualifications of directors on board

A corporation cannot serve as the director of another corporation; a director must be a natural person. Unless required by the articles of incorporation or the bylaws, a director need not be a shareholder of the corporation or resident of a particular state. RMBCA §§ 8.02, 8.03.

Corporate duration

A corporation has perpetual existence unless the articles of incorporation provide otherwise. RMBCA §3.02.

Voting and corporation's stock

A corporation is generally not entitled to vote its stock. Stock that has been authorized but not issued by a corporation cannot be voted by the corporation. Similarly, stock that has been authorized and issued by a corporation and then reacquired by the corporation (i.e., treasury stock) cannot be voted.

Corporation's liability for pre-incorporation transactions

A corporation is not liable for pre-incorporation transactions entered into by a promoter. The fact that the promoter entered into a transaction to benefit a future corporation is not sufficient to hold the corporation liable. Because a corporation is not necessarily in existence during a pre-incorporation transaction, a principal-agent relationship does not exist between the corporation and the promoter.

Annual shareholder meeting

A corporation is required to hold a shareholders' meeting each year. Generally, the time and place of the meeting are specified in the corporate bylaws. The primary purpose of the annual meeting is to elect directors, but any business that is subject to shareholder control may be addressed. RMBCA § 7.01.

Mandatory director indemnification

A corporation is required to indemnify a director for any reasonable expense, including court costs and attorney's fees, incurred in the successful defense of a proceeding against the director in his role as a director. In addition, a corporation must indemnify a director when ordered by the court. RMBCA §§8.52, 8.56.

S corporation

A corporation is usually subject to tax as a "C corporation," which is a separate taxable entity from its shareholders, causing the corporation to face double taxation. The corporation pays taxes first on profits and again as shareholders on distributions received from the corporation. However, a corporation may elect to avoid double taxation as an "S corporation," in which the income and expenses of the corporation are passed through to shareholders (who are then taxed on such items directly). 26 U.S.C. § 1361, et seq. To become an S corporation for federal tax purposes, a corporation must file Internal Revenue Service (IRS) Form2553, and the IRS must approve the application. Companies that file as Scorporations can have no more than 100 shareholders. Only individuals, estates, certain exempt organizations, or certain trusts may be shareholders, and the shareholders must all be either U.S. citizens or resident aliens (nonresident aliens are not permitted). The Scorporation may not have more than one class of stock. Each shareholder must consent to the S corporation election for a corporation to become an S corporation.

Corporate liability insurance

A corporation may acquire insurance to indemnify directors for actions arising from service as a director. The insurance can cover all awards against a director as well as expenses incurred by him, even though the corporation could not otherwise indemnify the director for such amounts. RMBCA §8.55.

Stock acquisition

A corporation may acquire stock in another corporation and thereby secure control of that corporation without going through the process of effecting a statutory merger. The two primary means by which a corporation can acquire stock in another corporation is by exchanging its own stock for that stock or by paying cash or other property for the stock.

Special shareholder meeting

A corporation may also hold a special meeting, the purpose of which must be specified in the notice of the meeting. Generally, a special meeting may be called by the board of directors or shareholders who own at least 10 percent of the shares entitled to vote at the meeting. RMBCA §§ 7.02, 7.05(c).

Larceny rewards

A defendant intending to return property in expectation of claiming a reward has not committed larceny, unless his intent is to return the property only upon receiving the reward.

Trust investments

At common law, trustees were limited to statutory lists of acceptable investments unless the trust instrument expressly authorized a deviation from the list. Only a few states continue to adhere to such lists.

Permissive director indemnification

A corporation may indemnify a director in the unsuccessful defense of a suit when: i) The director acted in good faith with the reasonable belief that his conduct was in the best interests of the corporation, or that his conduct was at least not opposed to the best interests of the corporation; and ii) In the case of a criminal proceeding, the director did not have reasonable cause to believe that his conduct was unlawful. Indemnification can extend to liability as well as expenses when the action is brought by a third party, but only to expenses if the action is brought by or on behalf of the corporation. RMBCA §8.51(a)(1), (d)(1). The authorization for permissive indemnification requires the approval of a disinterested majority of directors or shareholders or an independent attorney chosen by disinterested directors. RMBCA §8.55.

Stock dividends

A corporation may issue its own stock to current shareholders without charge in lieu of making a distribution of cash or other property. Commonly referred to as "stock dividends" or "stock splits," these transactions do not alter the corporation's assets or liabilities, nor do they constitute a distribution. RMBCA §6.23.

Limitations on Corporate distributions

A corporation may not make a distribution if it is insolvent or if the distribution would cause the corporation to be insolvent. RMBCA §6.40(c).

Stock-for-stock

A corporation may offer its own stock to shareholders in another corporation in exchange for their stock in that corporation (i.e., a stock swap). Generally, a shareholder in the other corporation may retain his stock and not participate in the stock swap. However, the RMBCA sets out a procedure, labeled a "share exchange," which parallels the procedure for a merger. If followed, this procedure requires all shareholders to participate in the stock swap. As with a merger, with such an exchange, dissenting shareholders are given the right of appraisal. RMBCA §11.03.

Par value stock

A corporation may, but is not required to, issue par value stock. For such stock, the corporation is required to receive at least the value assigned to that stock (i.e., par value), which need not be its market value and which can even be a nominal amount.

Advance of expenses to director

A corporation may, upon a petition by the director, advance litigation expenses to the director. Upon termination of the action, the director must repay such expenses if he is not entitled to indemnification for them. RMBCA §8.53.

Solvency for distribution

A corporation must pass two tests to be deemed solvent and, as such, capable of making a distribution: an equity test and a balance-sheet test. Under the equity test, a corporation must be able to pay off its debts as they come due in the usual course of business. RMBCA §6.40(c)(1). Under the balance-sheet test, a corporation's total assets must exceed its total liabilities plus liquidation preferences of senior securities. RMBCA §6.40(c)(1).

Voting and stock in another corporation

A corporation that owns stock in another corporation generally can vote such stock as any other shareholder can.

Exculpatory provisions in the articles of incorporation

A corporation's articles of incorporation may include an exculpatory provision shielding directors from liability for money damages for failure to exercise adequate care in the performance of their duties as directors. Typically, exculpatory provisions do not protect directors from liability for any breach of the duty of loyalty, for acts or omissions that are not in good faith, or for any transactions from which the director received an improper personal benefit. See Del. Gen. Corp. Law § 102(b)(7); Model Bus. Corp. Act § 2.02(b)(4).

Domicile of Corporations

A corporation's domicile is always the state where it is incorporated.

Demonstrative and Experimental Evidence

A court may allow demonstrations and experiments to be performed in the courtroom. This may include exhibition of injuries in a personal injury or criminal case. A court has discretion to exclude evidence of personal injuries if the demonstration of such severe injuries would result in unfair prejudice. A court may also exclude a demonstration that cannot be effectively cross-examined. Science experiments are permitted but may be excluded if they will result in undue waste of time or confusion of the issues.

Trust termination - equitable deviation and unanticipated circumstances

A court may modify the terms of a trust if events that were unanticipated by the trustee have occurred, and the changes would further the purposes of the trust. To the extent possible, the modification must be made in accordance with the settlor's probable intention. Uniform Trust Code § 412(a). Even if circumstances have not changed in an unanticipated manner, a court may modify the terms of a trust that relate to the management of trust property if continuation of the trust on its existing terms would be impracticable, wasteful, or would impair the trust's administration. Uniform Trust Code § 412(b). Modification under the doctrine of equitable deviation does not require the court to seek beneficiary consent. See Uniform Trust Code § 411, cmt; Restatement (Third) of Trusts §§ 65, 66.

Court termination of trust

A court may prematurely terminate a trust if the trust's purpose has been achieved, or if it has become illegal, impracticable, or impossible.

Voluntary cessation

A court will not dismiss as moot a case in which the defendant voluntarily ceases its illegal or wrongful action once litigation has commenced. The court must be assured that "there is no reasonable expectation that the wrong will be repeated." United States v. W.T. Grant Co., 345 U.S. 629 (1953).

Charging order

A creditor of a partner who has obtained a judgment against the partner may enforce that judgment against the partner's partnership interest only by obtaining a judicial charging order. The charging order constitutes a lien on the partner's partnership interest. Among the available remedies are a court-appointed receiver of the partner's distributions from the partnership and a court-ordered foreclosure of interest. The purchaser of the interest at a foreclosure sale is treated as a transferee. RUPA 504.

Mitigating circumstances for death penalty for homicide

A death sentence violates the Eighth and Fourteenth Amendments if the sentencing judge refuses to review or admit mitigating evidence. Mitigating evidence must be presented if it meets a low threshold test for relevance. Woodson v. North Carolina, 428 U.S. 280, 316 (1976). Capital-sentencing courts are not required to instruct juries that the defendant need not prove mitigating circumstances beyond a reasonable doubt. Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633 (2016).

Payment made to beneficiary on death

A decedent may have had an agreement with a bank, employer, or some other individual or entity to distribute the property held under the contract at the decedent's death to a named beneficiary. Typically, to collect property held under a payable-on-death (POD) or transfer-on-death (TOD) agreement, the beneficiary must file a death certificate with the custodian holding the property. Examples of such agreements are a bank account with a POD designation, a security registered in beneficiary form or with a TOD designation, retirement benefits to be paid to a beneficiary, and an insurance policy on the life of the decedent.

Probate generally

A decedent's assets as of the date of his death are divided between probate and nonprobate property. Probate property is property that passes under intestacy or under the decedent's will. Nonprobate property passes under an instrument other than a will (e.g., joint tenancy property, life insurance, and pension plan proceeds). Probate provides evidence of transfers of title, protects creditors by requiring payment of debts, and directs distribution of the decedent's property after creditors are paid.

Issue - Qualifications generally

A decedent's issue includes all lineal descendants, including children, grandchildren, great-grandchildren, and the like, but excluding the descendants of living lineal descendants. A parent-child relationship must be established for an individual to be classified as issue of another.

Special partnership business

A decision as to a matter outside the ordinary course of the partnership's business requires the consent of all partners. An amendment of the partnership agreement also requires the consent of all partners. RUPA 401(j).

Posthumous Deed

A deed can effect a nonprobate transfer of property upon the death of the grantor if the deed is executed with the present intent of transferring a property interest to the grantee (e.g., a remainder interest). If so, then the deed need not comply with the requirements for execution of a will. However, if the grantor intends that the grantee have the property interest only upon the grantor's death (i.e., a testamentary intent), the deed is not effective to transfer the property interest unless the deed complies with requirements for the execution of a will.

Mens rea - negligently

A defendant acts "negligently" when that defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of care of a reasonable person in the same situation. MPC § 2.02(2)(d).

Impermissibly suggestive identification procedures

A defendant also has a due process right pursuant to the Fifth Amendment (for federal prosecutions) and the Fourteenth Amendment (for state prosecutions) with regard to a witness's identification based on an identification procedure arranged by the police that was impermissibly suggestive. This right exists whether the identification procedure was corporeal or non-corporeal, and whether the identification took place before or after the indictment of the defendant. Perry v. New Hampshire, 545 U.S. ___, 132 S. Ct. 716 (2012).

Plea - no right to bargain

A defendant cannot compel the prosecutor to bargain; the defendant does not have a constitutional right to plea bargain. Weatherford v. Bursey, 429 U.S. 545 (1977).

Double jeopardy and guilty plea

A defendant does not automatically waive her double-jeopardy rights by entering a guilty plea, but the plea agreement may include a provision that the charges against the defendant may be reinstated if the defendant breaches the agreement. Ricketts v. Adamson, 483 U.S. 1, 11 (1987). A guilty plea to a lesser included offense does not preclude prosecution for a greater offense if the greater offense has been charged before the plea is entered. Ohio v. Johnson, 467 U.S. 493, 501 (1984).

Right to testify

A defendant has a right to testify and to present evidence on his own behalf under Due Process.

Waiver of Sixth Amendment

A defendant has the constitutional right to refuse counsel and proceed pro se at trial unless the request is untimely or the defendant is unable or unwilling to abide by the rules of procedure or protocol. Faretta v. California, 422 U.S. 806 (1975). A defendant who is competent to stand trial may nevertheless be found incompetent to represent himself. Indiana v. Edwards, 554 U.S. 164 (2009). In addition, a defendant does not have a right to proceed without an attorney on an appeal. Martinez v. Court of Appeal, 528 U.S. 152 (2000). Recall that in the Fifth Amendment context, once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-initiated interrogation unless counsel is present. Edwards v. Arizona, 451 U.S. 477 (1981). However, police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day or more break in custody (such as a the suspect's release back into the general prison population). Maryland v. Shatzer, 559 U.S. 98 (2010). The Sixth Amendment right to counsel can be waived "so long as relinquishment of the right is voluntary, knowing and intelligent." Montejo v. Louisiana, 556 U.S. 778 (2009). Thus, as long as the defendant is given Miranda warnings and a valid waiver occurs, evidence obtained voluntarily from the interrogation without the presence of counsel is admissible.

Aggravating circumstance for death penalty for homicide

A defendant in a homicide case cannot be sentenced to death unless the trier of fact convicts the defendant of murder and finds at least one "aggravating circumstance" at either the guilt phase or penalty phase. Brown v. Sanders, 546 U.S. 212, 218-19 (2006). The aggravating circumstance must meet two requirements: i) It must not apply to every defendant convicted of murder; and ii) It must not be unconstitutionally vague. (For example, "especially heinous, atrocious, or cruel" conduct definition is unconstitutionally vague.) The trier of fact can consider both statutory and non-statutory aggravating circumstances, but the death penalty cannot be imposed without one statutorily defined aggravating factor being found.

Post-indictment identifications and Sixth Amendment

A defendant is entitled to have counsel present at any post-indictment lineup or show-up in which the defendant is required to participate. United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967). The prosecution bears the burden of establishing that counsel was present. The right to counsel does not apply to any pre-indictment lineup, even if it takes place after the defendant has been arrested for another unrelated crime. Kirby v. Illinois, 406 U.S. 682, 690-691 (1972).

Jury views on race

A defendant is entitled to inquire on voir dire into ethnic or racial prejudice of possible jury members only when the issues to be tried involve allegations of racial or ethnic prejudice, or whenever race is "inextricably bound up in the case." Ristiano v. Ross, 424 U.S. 589, 597 (1976).

Rule 10b-5 scienter

A defendant is not strictly liable for making a false or misleading statement or for negligently making such a statement. Instead, the defendant must make the statement intentionally or recklessly. This fault requirement is also known as "scienter." Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976).

Waiver of Miranda

A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily. (Keep in mind that a defendant's mental illness does not necessarily negate the voluntariness requirement; there must be coercive police activity for a confession to be involuntary. Colorado v. Connelly, supra.) There can be no effective waiver, however, until the Miranda warnings are properly given. Silence on the part of the suspect is not sufficient to waive his Miranda rights. However, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Berghuis v. Thompkins, 560 U.S. 370 (2010). Once effectively waived, the police are not required to inform the suspect of the defense counsel's efforts to reach the defendant by telephone and need not inform counsel that the defendant is being questioned.

Withdrawal from conspiracy, liability for substantive crimes

A defendant may limit his liability as a co-conspirator for the substantive crimes that are the subject of the conspiracy by withdrawing from the conspiracy at any time after it is formed. For this purpose, he may withdraw by giving notice to his co?conspirators or timely advising legal authorities of the existence of the conspiracy even though such an action does not thwart the conspiracy. While a defendant is not liable as a co-conspirator for crimes committed in furtherance of the conspiracy after an effective withdrawal from the conspiracy, the defendant may nevertheless be liable as an accomplice for subsequent crimes committed by his former co-conspirators for which he has given aid.

Fifth Amendment Scope during Trial

A defendant may refuse to testify at a criminal trial. He may also refuse to answer questions in other proceedings (i.e., civil depositions) when the answers might incriminate him in future criminal proceedings. The privilege does not prevent the prosecutor from using prior conflicting statements to impeach the defendant once the defendant takes the stand. This is called "opening the door" by the defendant.

Criminal Defense - resisting unlawful arrest

A defendant may use nondeadly force to resist an unlawful arrest, but never deadly force. Some jurisdictions do not permit the use of force at all and require defendants to seek legal redress for an unlawful arrest.

Waiver of jury trial

A defendant may waive the right to a jury trial and opt for a trial by judge, known as a "bench trial," if the waiver is freely and intelligently made. Adams v. United States ex rel McCann, 317 U.S. 269 (1942). However, the defendant does not have an absolute right to a bench trial. The court or prosecutor may compel the defendant to submit to a jury trial, unless the defendant would be denied a fair trial. Singer v. United States, 380 U.S. 24 (1965).

Waiving the Fifth

A defendant waives the privilege by taking the witness stand; a witness waives the privilege by disclosing self-incriminating information in response to a specific question. Having taken the stand, the defendant cannot assert the privilege in response to the prosecution's proper cross-examination of his testimony, including impeachment questions.

Attempt - prosecution and punishment

A defendant who does not complete a crime may be charged only with attempt of the completed crime. Punishment for attempt is usually less severe than the sentence for the completed offense. If a defendant completes a crime, he may be charged with both attempt of the completed crime and with the completed crime itself, but he may be convicted of only one.

Acquittal and double jeopardy

A defendant who has been acquitted of a crime generally may not be retried for the same crime. A grant of a demurrer or motion to dismiss in favor of the accused at the close of the state's case is the equivalent of an acquittal. There must be a final verdict of acquittal, however, for the Double Jeopardy Clause to apply. See Blueford v. Arkansas, 566 U.S. ____, 132 S. Ct. 2044 (2012) (holding that defendant could be retried for murder even though jury in first trial had announced in open court that they had unanimously voted against murder charges, because declaration in open court was not equivalent to verdict of acquittal since jury was sent back to deliberate on lesser-included charges of manslaughter and negligent homicide and might have revisited decision on murder charges). An acquittal based on an error of law is nonetheless an acquittal for Double Jeopardy purposes. Evans v. Michigan, 568 U.S. ___, 133 S. Ct. 1069 (2013) (retrial following court-decreed acquittal barred even though the court misconstrued the statute under which defendant was charged).

Suppression hearing for identification

A defendant who has moved to suppress an identification is entitled to a suppression hearing. This hearing usually is held outside the presence of the jury, although exclusion of the jury is not constitutionally required.

Retrial Offenses

A defendant who was tried for a crime but convicted only of a lesser included offense may not be retried on the originally charged crime even if the conviction is reversed. Price v. Georgia, 398 U.S. 323, 329 (1970).

Impeachment of a prosecution witness for bias

A denial of the opportunity to cross-examine a prosecution witness with regard to bias violates the Confrontation Clause. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). However, such denial is subject to harmless-error analysis. Moreover, trial judges retain wide latitude to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the safety of the witness, or interrogation that is repetitive or only marginally relevant. Id.

Declining trusteeship

A designated trustee who does not accept the trusteeship within a reasonable time after knowing of the designation is deemed to have declined the trusteeship. A person designated as trustee may, without accepting the trusteeship, act to preserve the trust property if, within a reasonable time after acting, the person sends to a qualified beneficiary a written statement declining the trusteeship. Such person also may inspect or investigate trust property to determine potential liability under environmental or other law or for any other purpose. If a person does not accept the trusteeship, the court will appoint a successor trustee, unless the settlor expressed an intent that the trust was to continue only as long as a particular person served as trustee.

Takings and Damage/Destruction of Property

A destruction of property or property rights by the federal, state, or local government can also result in a taking. The destruction need not directly benefit the government. The Takings Clause is not limited to ownership interests in property; instead, it can extend to takings of non-possessory property rights, such as easements or liens. Armstrong v. United States, 364 U.S. 40 (1960). Similarly, physical damage to property or interference with a property owner's rights by governmental action can result in a taking. Note: A statute that requires an owner of property rights to take action in order to preserve an unused right does not result in a taking if the owner fails to take such action. Texaco, Inc. v. Short, 454 U.S. 516 (1982).

Board of directors condoning illegal conduct

A director breaches her fiduciary duty when she fails to act on "red flags" of corporate illegality. See Graham v. Allis-Chalmers Mfg. Co., 188 A.2d 125, 130 (Del. 1963). Examples of conduct that deemed to show lack of good faith include bribing state officials or foreign governments even when doing so is common practice, violating labor laws, and business policies that incentivized employees to commit fraud.

Inspection Rights of directors

A director is entitled to inspect and copy corporate books, records, and other documents for any purpose related to the performance of his duty as a director. When the corporation refuses to grant the director access to these items, the director can seek a court order to enforce this right. RMBCA §16.05.

Board of Directors reliance protection

A director is entitled to rely on the performance of—as well as on information, reports, and opinions supplied by—the following persons if the director reasonably believes them to be reliable and competent: i) Officers and other employees of the corporation; ii) Outside attorneys, accountants, or other skilled or expert individuals retained by the corporation; and iii) A committee of the board of which the director is not a member. RMBCA §8.30(e).

Presence at Board of Directors Meeting

A director is not required to be physically present at a meeting. A meeting may be conducted through conference call or any other means that allow each director to hear the other directors during the meeting. RMBCA §8.20(b).

Director removal meeting

A director may be removed only at a meeting called for the purpose of removing the director, and the meeting notice must state that removal is at least one of the purposes of the meeting. RMBCA § 8.08(d).

Board of Directors - dissent

A director may incur liability for illegal or improper action taken by the board at a meeting at which the director is present, even though the director does not vote in favor of the action. To forestall such liability, the director must: i) Promptly object to the holding of the meeting; ii) Ensure that his dissent or abstention from the specific action is noted in the minutes of the meeting; or iii) Not vote in favor of the action and deliver written notice of his dissent to the presiding officer of the meeting before its adjournment or to the corporation immediately afterward. RMBCA §8.24(d).

Resignation of Director from board

A director may resign at any time by delivering a written notice to the board, its chair, or the corporation. RMBCA §8.07.

Duties of directors

A director owes two basic duties to the corporation: (i) a duty of care and (ii) a duty of loyalty. In discharging these duties, a director is required to act in good faith and in a manner that the director reasonably believes to be in the best interests of the corporation. RMBCA §8.30.

Board of directors dereliction of duty

A director who consciously disregards his duties is not acting in good faith. When willful ignorance is the basis for a claim of director liability, the challenger must show a consistent or systemic failure of the directors to exercise oversight. In re Caremark Int'l, 698 A.2d 959 (Del. Ch. 1996). The necessary conditions for director oversight liability are that (i) the directors failed to implement any reporting or information system or controls, or (ii) notwithstanding these controls, the directors failed to monitor or oversee its operations, thereby making themselves uninformed of risks. In either case, imposition of liability requires a showing that the directors knew that they were not discharging their fiduciary obligations. Id.

Director competition with corporation

A director who engages in a business venture that competes with the corporation has breached his duty of loyalty to the corporation. However, a director may engage in unrelated business that does not compete with the corporation. Note that corporate officers and other employees more frequently engage in this kind of breach than directors do.

Board of Directors self-dealing

A director who engages in a conflict-of-interest transaction with his own corporation, also known as "self-dealing," has violated his duty of loyalty unless the transaction is protected under the safe-harbor rule. The business judgment rule does not apply when a director engages in a conflict-of-interest transaction with his corporation. In addition, a director must not profit at the corporation's expense.

Board of directors fraud

A director who knowingly disseminates false information that results in corporate injury or injury to a stockholder violates her fiduciary duty. Malone v. Brincat, 722 A.2d 5 (Del. 1998).

Director's liability for unlawful distributions

A director who votes for or assents to an unlawful distribution, in violation of the director's duties of care and loyalty, is personally liable to the corporation for the amount of the distribution in excess of the lawful amount. A director is entitled to contribution from any other director who also is liable for the unlawful distribution. RMBCA §8.33(b)(1). If a shareholder knowingly accepts an unlawful distribution, then a director is entitled to recoupment from that shareholder's pro rata portion of the unlawful distribution. RMBCA §8.33(b)(2).

Director removal vote

A director who was elected by a particular voting class of stock can be removed only by that same class (or by court proceeding). RMBCA § 8.08(b). If cumulative voting is not authorized, then a shareholder vote removes a director if the number of votes for removal exceeds the number of votes against removal. RMBCA § 8.08(c). If cumulative voting is authorized, then a director may not be removed if the votes sufficient to elect the director are cast against the director's removal. RMBCA §8.08. Notwithstanding the foregoing, a director can be removed by court proceeding.

Who can disclaim testamentary gifts

A disclaimer can be made by a third party, such as a guardian, custodian, trustee, or personal representative, on behalf of a minor, incompetent, or decedent. A spendthrift clause in a will does not preclude a disclaimer.

Displays of the Ten Commandments

A display of the Ten Commandments on public property is an impermissible violation of the Establishment Clause if the display has a "predominantly religious purpose." McCreary County v. ACLU, 545 U.S. 844 (2005) (Ten Commandments posted in courthouse impermissible). If the display also communicates a secular moral message, or its context conveys a historical and social meaning, it may be upheld. Van Orden v. Perry, 545 U.S. 677 (2005) (Ten Commandments monument on the state capitol grounds displaying 17 monuments and 21 historical markers commemorating the state's "people, ideals, and events that compose its identity" was permitted because the "Ten Commandments have an undeniable historical meaning" in addition to their "religious significance." Because of the unique historical message, which is separate from any religious message, installing the Ten Commandments in a public park did not violate the Establishment Clause). This is a highly context-dependent, case-specific inquiry.

Dissociated partner's pre-dissociation actions

A dissociated partner is generally liable for partnership obligations incurred before dissociation. RUPA 703(a). An exception exists when the partnership creditor, with notice of the partner's dissociation, agrees to a material change in the obligation's terms to which the dissociated partner did not consent. RUPA 703(d). In addition, a dissociated partner can obtain a release from a partnership obligation with the agreement of both the partnership creditor and the partners who continue the business. RUPA703(c).

Judicial action to pay disssociated partner

A dissociated partner may maintain an action against the partnership to determine the buyout price and to compel the partnership to pay that amount to the partner. RUPA 701(i).

Winding up Corporation

A dissolved corporation may continue to exist as a corporation for the limited purpose of winding up its affairs and liquidating its business. This includes (i)collecting assets, (ii) disposing of property that will not be distributed to shareholders, (iii) discharging liabilities, and (iv) distributing property among shareholders according to their interests. It does not include (i) transferring title to the corporation's property, (ii) preventing transfer of shares or securities, (iii) changing quorum or voting requirements, (iv)terminating the authority of the registered corporate agent, or (v) preventing commencement of a proceeding by or against the corporation. RMBCA § 14.05.

LP distribution as a return of contribution

A distribution constitutes a return of a partner's contribution to a limited partnership to the extent that it reduces her share of the net assets to less than her contribution. A partner is liable to the partnership for a return of a contribution to the extent necessary to discharge the limited partnership's liabilities to creditors. The partner's liability extends for one year after the return of the contribution, unless the return was wrongful, in which case the time period is lengthened to six years. RULPA 608.

Corporate Distributions

A distribution is the transfer of cash or other property from a corporation to one or more of its shareholders. The most common form of distribution is a dividend, which is normally a cash payment made to shareholders. Other forms of distribution include a distribution of indebtedness or a corporation's purchase of its own stock. RMBCA §1.40(6).

Per stirpes distribution

A distribution occurs per stirpes when the issue take in equal portions the share that their deceased ancestor would have taken, if living. The estate is first divided into the total number of children of the ancestor who survive or leave issue who survive.

Forgery apparent legal significance

A document has legal significance if it has value beyond its own existence. A contract, deed, will, or check has value beyond the document itself; a painting does not.

Reasonableness of mistake as defense to crime

A mistake of fact is a defense to a specific-intent crime, even if the mistake is unreasonable. A mistake of fact must be reasonable in order to be a defense to a general-intent or malice crime. Under the Model Penal Code, a mistake of fact that negates the required state of mind for a material element of a crime is a defense. MPC § 2.04(1).

Burglary dwelling of another

A dwelling is a structure regularly occupied for habitation. It need not be occupied at the time of the breaking, but it must not be abandoned. All states have statutes that expand the type of structure to include non-dwellings, such as businesses, buildings, or cars, and surrounding areas, such as yards. The dwelling must be that of another person. A person cannot burglarize his own dwelling, unless a possessory interest has been transferred to another (e.g., a tenant).

Justiciability and Abstention

A federal court may abstain from deciding a claim when strong state interests are at stake. A court may refrain from ruling on a federal constitutional claim that depends on resolving an unsettled issue of state law best left to the state courts. Railroad Comm'n of Texas v. Pullman, 312 U.S. 496 (1941). A court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute. Younger v. Harris, 401 U.S. 37 (1971). Abstention also may be appropriate with regard to a civil enforcement proceeding or a civil proceeding involving an order uniquely in furtherance of the state courts' ability to perform their judicial functions, such as a civil contempt order. Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. ___, 134 S. Ct. 584 (2013).

Controlling effect of a federal confidentiality order

A federal court may order that the privilege or protection is not waived by disclosure connected with the pending litigation (i.e., a confidentiality order). In such a case, the disclosure does not constitute a waiver in any other federal or state proceeding. Fed. R. Evid. 502(d).

Justiciability and political questions

A federal court will not rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other two branches of government. Baker v. Carr, 369 U.S. 186 (1962). A political question not subject to judicial review arises when: i) The Constitution has assigned decision making on this subject to a different branch of the government; or ii) The matter is inherently not one that the judiciary can decide.

Federal officials immunity

A federal official, in performing a discretionary (as opposed to ministerial) act, is entitled to qualified immunity from liability for civil damages when the official's conduct does not violate clearly established statutory and constitutional rights of which a reasonable person would have known. This is an objective standard; a plaintiff's bare allegations of malice are insufficient to overcome this immunity. Harlow v. Fitzgerald, 457 U.S. 800 (1982).

Field test of substance

A field test performed on a substance to determine if the substance is contraband is not a search for Fourth Amendment purposes. United States v. Jacobsen, 466 U.S. 109 (1984).

Adequate and independent state grounds

A final state-court judgment that rests on adequate and independent state grounds may not be reviewed by the U.S. Supreme Court (or it would be an advisory opinion). The state-law grounds must fully resolve the matter (i.e., be adequate) and must not incorporate a federal standard by reference (i.e., be independent). If a state court chooses to rely on federal precedents, the court can avoid federal review by making a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance and did not compel the court's judgment. When it is not clear whether the state court's decision rests on state or federal law, the Supreme Court may hear the case, decide the federal issue, and remand to the state court for resolution of any question of state law. Michigan v. Long, 463 U.S. 1032 (1983).

Foreign corporation

A foreign corporation is a corporation that is incorporated in another state. To do business in a state other than its state of incorporation, a corporation is required to register with that state and receive a "certificate of authority." Failure to do so prevents the foreign corporation from suing, but not from being sued, in state courts until registered. However, it does not impair the validity of corporate acts or contracts or prevent the corporation from defending any proceeding within the state. Many actions, such as holding board meetings, maintaining bank accounts, and selling through independent contractors, do not constitute doing business within a state. RMBCA §§ 15.01-15.32.

Domicile by Choice - potential problem of multiple states claiming domicile

A forum state will apply its own law in determining questions of domicile. Although a person may have only one domicile, two states could theoretically conclude that the person is domiciled within their jurisdictions.

Agreement to adopt foster child under intestacy

A foster child who was never legally adopted may be treated as the child of a foster parent who dies intestate if the foster parent made an agreement with the natural parents of the child to adopt her and proceeded to treat the child as his own.

Media gag orders

A gag order is a judicial order prohibiting the press from publishing information about court proceedings. Such orders are subject to prior-restraint analysis. Gag orders are almost always struck down because they are rarely the least restrictive means of protecting the defendant's right to a fair trial. The trial judge has other alternatives available, such as change of venue, postponement of the trial, careful voir dire, or restricting the statements of lawyers and witnesses. Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1972).

General devise

A general legacy is a gift of personal property that the testator intends to be satisfied from the general assets of his estate.

LP General Partner liability to third parties

A general partner is personally liable to third parties for the obligations of the limited partnership. Except as provided in the partnership agreement, a general partner also has liabilities to the partnership and the other partners. RULPA403(b).

General partner contributions to Limited partnership

A general partner may contribute to the limited partnership, share in its losses and profits, and receive distributions from it. RULPA 404.

General partner's transaction of business with the LP

A general partner may lend money to and transact other business with the limited partnership. In such transactions, the general partner has the same rights and obligations as a person who is not a partner. RULPA 107.

Heinous Murder

A murder resulting from an egregious act, such as ambush (i.e., lying in wait), torture, bombing, terrorism, or poisoning, may be classified as first-degree murder.

Liability of a former general partner to LP

A general partner who becomes a limited partner as a consequence of a conversion remains liable for any obligation incurred by the partnership before the conversion. In addition, such a partner, despite being a limited partner, may be liable for obligations incurred by the limited partnership within 90 days after the conversion becomes effective when the other party to the transaction reasonably believes at the time of the transaction that the limited partner is a general partner. RUPA 902(e).

General Power of Attorney

A general power of attorney allows an agent to handle all affairs during a period of time when the principal is unable to do so. This power of attorney is very broad and provides extensive powers to the agent, such as those related to financial matters, filing tax returns, buying and selling property, etc. Additional powers may also be granted, such as the powers to make gifts, maintain business interests, and make transfers to revocable trusts.

Ademption by Satisfaction

A general, specific, or demonstrative devise may be satisfied in whole or in part by an inter vivos transfer to the devisee after the execution of the will, if it was the testator's intent to satisfy the devise by the transfer. The testator's intent to adeem must exist before the legacy or bequest is rendered inoperative. The UPC presumes no ademption by satisfaction, absent an express writing, and it limits the sources of evidence of the testator's intent to adeem. Unif. Probate Code § 2-609.

Public-Use Challenge

A government may seize private property not only for its own direct use but also to transfer the property to another private party. Although such a seizure is subject to challenge as not being made for a public use, the taking need merely be "rationally related to a conceivable public purpose." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984). This is a highly deferential standard, and the burden is on the person challenging the taking to prove a lack of legitimate interest or rational basis. In addition to traditional health, safety, and welfare justifications, economic redevelopment goals constitute a sufficient public purpose to justify the seizure. Kelo v. City of New London, 545 U.S. 469 (2005). Moreover, a government-mandated transfer of property from one private party directly to another (e.g., from lessor to lessee) may nevertheless be for a public use. Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

Grand jury and witness's rights

A grand jury witness has no right to counsel in the grand jury room. The witness may request permission to consult with counsel outside of the jury room before answering a grand jury question. A prosecutor's failure to give a Miranda warning to a witness who then lies to a grand jury does not prevent the prosecution of the witness for perjury. United States v. Wong, 431 U.S. 174 (1977). Further, a witness who is a target of an investigation and may become a defendant is not entitled to a warning of his putative defendant status; the failure to receive such a warning does not protect a lying witness from a perjury conviction. United States v. Washington, 431 U.S. 181 (1977).

State alienage classifications and participation in government functions

A growing exception exists, however, for state laws that restrict or prohibit an alien's participation in government functions. Such laws need only have a rational relationship to a legitimate state interest. Laws prohibiting aliens from voting, serving on a jury, or being hired as police officers, probation officers, or public-school teachers have been upheld as preventing aliens from having a direct effect on the functioning of the government.

Guardianship

A guardian has minimal power over property and must go through a difficult process to obtain the necessary court approval to act on behalf of a minor. The modern trend is to transform this function into a conservatorship, wherein the conservator acts as a trustee for the minor, with annual accounting to the court.

Guilty pleas

A guilty plea is an admission of facts contained in the charging document (e.g., indictment, information).

Hearsay Exception - Public Records

A hearsay exception applies to a record or statement of a public office or agency that sets out: i) The activities of the office or agency; ii) An observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in a criminal case); or iii) Factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case. Fed. R. Evid. 803(8). Investigative reports: In addition to factual findings, opinions, evaluations, and conclusions contained in an investigative report that are based on factual findings are included in the public records exception. Beech Craft Corp. v. Rainey, 488 U.S. 153 (1988).

Revocation of Holographic Wills

A holographic will can be altered or revoked in whole or in part by holographic changes and without a new signature. States that allow holographic wills also allow their revocation by formal wills and vice versa. On the other hand, some state statutes require both the holographic will and any changes be signed. See Unif. Probate Code § 2-502 and § 2-502(b). If a subsequent holographic will disposes of part of an estate already disposed of in a typewritten will, then the typewritten will is revoked only to the extent that it is inconsistent with the later holographic will.

Holographic Wills and Signed Writing

A holographic will is one that is completely handwritten and signed by the testator. Unlike attested wills, a holographic will cannot be signed by another person on behalf of the testator. Jurisdictions differ on whether the entire will needs to be in the testator's handwriting. Some jurisdictions require a strict compliance approach under which any markings not in the testator's handwriting invalidate the will. Others, including the UPC, merely require that the material provisions of the will are written by hand. Unif. Probate Code § 2-502(b). A holographic will need not be witnessed.

Equal protection limitations on punishment

A jail sentence is impermissible if it is imposed only because the defendant was unable to pay a fine. If a defendant has made reasonable bona fide efforts to pay the fine, then revocation of probation without consideration of alternative punishments is fundamentally unfair under the Fourteenth Amendment.

Joint venture

A joint venture is not a clearly defined legal entity. Frequently, courts use the term "joint venture" to describe a partnership for a specific, limited purpose. Courts usually apply partnership rules to a joint venture when the association has a business purpose rather than a personal purpose.

Joint Wills

A joint will is a will signed by two or more persons that is intended to serve as the will of each. A joint will that is not reciprocal is merely the individual will of each of the persons signing the same document (and is treated as if there were several separate wills). A will that is both joint and reciprocal is executed by two or more persons, with reciprocal provisions, and shows on its face that the devises were made in consideration of the other.

No protection for media sources

A journalist has no First Amendment right to refuse to testify before a grand jury regarding the content and source of information relevant to the criminal inquiry. Branzburg v. Hayes, 408 U.S. 665 (1972).

Judicial Immunity

A judge is absolutely immune from civil liability for damages resulting from her judicial acts, including grave procedural errors and acts done maliciously or in excess of authority unless there is a clear absence of all jurisdiction. Butz v. Economou, 438 U.S. 478 (1987); Stump v. Sparkman, 435 U.S. 349 (1978). The judge is not immune, however, to lawsuits regarding nonjudicial activities, such as hiring and firing court employees. Forrester v. White, 484 U.S. 219 (1988). Prosecutors are subject to similar immunity rules. Imbler v. Pachtman, 424 U.S. 409 (1976). Court officers who perform ministerial duties, such as court reporters, are entitled only to qualified, not absolute, immunity. Antoine v. Byers & Anderson, 508 U.S. 429 (1993). Under 42 U.S.C. § 1983, a damage claim can be brought against a state official personally for violation of constitutional rights. The Supreme Court has recognized that a similar claim can be brought against federal officials. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Jury size and unanimity

A jury of less than six members is a denial of due process, and a unanimous verdict is constitutionally required if a jury is made up of only six members. For state-court juries of seven or more, the vote need not be unanimous, but there is no strict rule as to how many votes are required for conviction. Apodaca v. Oregon, 406 U.S. 404 (1972). The Federal Rules of Criminal Procedure require a unanimous vote by a 12-member jury in federal criminal trials, unless waived in writing and approved by the court. A verdict by 11 jurors is permitted if the 12th juror is excused for good cause after deliberations begin.

Kidnapping - enhanced punishment

A kidnapping that results in bodily injury, interferes with a governmental function, or is done for the purpose of collecting a ransom may be subject to enhanced punishment, by statute.

Depraved heart

A killing that results from reckless indifference to an unjustifiably high risk to human life is a depraved-heart murder. Depraved-heart murder is an unintentional killing that results in death. There is a split among jurisdictions as to whether the requisite depravity exists when a defendant is actually unaware of the risk involved in the conduct, but the majority of states and the MPC impose liability only when the defendant actually realizes the danger. (The minority objective standard imposes guilt if a reasonable person would have recognized the danger.) Note that even those states that ordinarily follow a subjective standard allow a conviction if the reason the defendant failed to appreciate the risk was due to voluntary intoxication. Generally, reckless driving alone will not lead to a charge of depraved-heart murder. Such a charge would be appropriate only if the reckless driving was extreme, such as if it were combined with intoxication or other aggravating factors. See, e.g., Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 2004) (an intoxicated defendant driving at an excessive speed); State v. Woodall, 744 P.2d 732 (Ariz. Ct. App. 1987) (intoxicated defendant drove almost 70 mph on a 40-mph double curve).

Free speech and unfettered discretion

A law or regulation that permits a governmental official to restrict speech (e.g., requires an official to issue a permit before a rally can be held) must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application. Such a law or regulation must be related to an important governmental interest and contain the procedural safeguards mentioned above. A statute that gives officials unfettered discretion is void on its face; speakers need not apply for a permit and may not be punished for violating the licensing statute. Lovell v. City of Griffin, 303 U.S. 444 (1938).

Equal Protection Rational Basis

A law passes the rational basis standard of review if it is rationally related to a legitimate governmental interest. This is a test of minimal scrutiny. It is not required that there is actually a link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link.

Equal Protection - discriminatory application

A law that appears neutral on its face may be applied in a discriminatory fashion. If the challenger can prove that a discriminatory purpose was used when applying the law, then the law will be invalidated.

Limitation on incoming partner's liability

A person admitted as a partner into an existing partnership is not personally liable for any prior partnership obligations. However, any capital contribution made by an incoming partner to the partnership is at risk for the satisfaction of such partnership obligations. RUPA 306(b).

Free Speech and overbreadth

A law that burdens a substantial amount of speech or other conduct constitutionally protected by the First Amendment is "overbroad" and therefore void. A statute's overbreadth must be substantial both in an absolute sense and relative to the statute's plainly legitimate reach. The mere fact that some impermissible applications of a statute can be conceived of is not sufficient to render a statute overbroad. United States v. Williams, 553 U.S. 285 (2008). This doctrine does not apply to commercial speech. Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,455U.S.489(1982). In order to prevent a "chilling effect" on protected speech (i.e., frightening people .into not speaking for fear of prosecution), overbroad statutes may be challenged as "facially invalid" even by those who are validly regulated on behalf of those who are not. Broadrick v. Okla., 413 U.S. 601 (1973). The challenger of a law bears the burden of establishing that substantial overbreadth exists. N.Y. State Club Ass'n v. City of N.Y., 487 U.S. 1 (1988).

Equal Protection - discriminatory motive

A law that is neutral on its face and in its application may still result in a disparate impact. By itself, however, a disparate impact is not sufficient to trigger strict or intermediate scrutiny; proof of discriminatory motive or intent is required to show a violation of the Equal Protection Clause. Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977).

Equal Protection - facial discrimination

A law that, by its very language, creates distinctions between classes of persons is discriminatory on its face.

The Chimel standard

A lawful arrest creates a situation that justifies a warrantless contemporaneous search of the person arrested and the immediate surrounding area (his "wingspan") from which a weapon may be concealed or evidence destroyed. Chimel v. California, 395 U.S. 752 (1969). If the arrest occurs in a home, it is permissible to search for confederates (i.e., people who might launch an attack) in spaces immediately adjacent to the place of arrest. If the officers have reasonable suspicion that confederates are hiding beyond these immediately adjacent areas, they can search for people in those places too. Maryland v. Buie, 494 U.S. 325, 334 (1990).

Criminal Failure to Act When Duty Exists

A legal duty to act and the failure to do so results in criminal liability in these five instances: i) Imposed by statute (e.g., the obligation to file a tax return); ii) Contract (e.g., a lifeguard saving a drowning person); iii) Special relationship (e.g., a parent's duty to her child or the duty to one's spouse); iv) Detrimental undertaking (e.g., leaving a victim in worse condition after treatment); and v) Causation (e.g., failing to aid after causing a victim's peril). The defendant must have knowledge of the facts giving rise to the duty to act and yet fail to act. Additionally, it must be reasonably possible for the defendant to perform the duty.

Search of impounded vehicle

A legally impounded vehicle may be searched, including closed containers, such as glove box or a backpack, as part of a routine inventory search. South Dakota v. Opperman, 428 U.S. 364, 369-71 (1976). The warrantless search need not take place at the time that the vehicle is seized.

Life-insurance trusts

A life-insurance trust provides for the payment of the proceeds from a life insurance policy upon the death of the insured to the trust, with the terms of the trust governing the recipients of the proceeds. Therefore, a life-insurance trust is not funded at its creation. Despite this lack of significant res, a life insurance trust is a valid trust. To avoid adverse tax consequences, the trust is the owner of the insurance policy and the trust is irrevocable.

Limitation of authority granted by partnership

A limitation on a partner's authority contained in a filed statement generally does not constitute constructive notice to a third party of that limitation. An exception exists with regard to a limitation contained in a statement on the authority of a partner to transfer real property held in the name of the partnership. To constitute constructive notice, a certified copy of the statement must be filed in the office for recording transfers of that real property. RUPA 303(e), (f).

Limited Liability Company

A limited liability company (LLC) is a legally recognized business entity distinct from its members that enjoys the pass-through tax advantage of a partnership but also the limited liability of a corporation. An LLC also provides flexibility in managing the entity. All states have an LLC statute. The Uniform Limited Liability Company Act (ULLCA) was approved in 1996 and revised in 2006 and 2011; states have been slowly enacting the ULLCA. Many of the rules applicable to corporations and corporate governance have counterparts applicable to LLCs. Some of these rules are detailed below.

Limited Liability Partnerships

A limited liability partnership (LLP) is a partnership in which a partner's personal liability for obligations of the partnership is eliminated. To enjoy LLP status, the partnership must file a statement with the state. In other respects, an LLP is governed by the same rules as a partnership.

Limited Partner's derivative action

A limited partner has the right to bring a derivative action on behalf of the limited partnership. RULPA 1001-1004.

Limited Partner record access right

A limited partner has the right to inspect and copy records of the limited partnership. In addition, a limited partner has the right to demand information regarding the business and financial condition of the partnership and other pertinent information about partnership affairs from the general partners. RULPA 305.

Limited Partner voting rights

A limited partner has the right to vote only to the extent allowed under the partnership agreement. RULPA 302. A limited partner does not have the right to vote on any partnership matter as a separate class. RULPA 405.

Homicide Victim's condition

A victim's preexisting condition that contributes to the victim's death does not supplant the defendant's conduct as an actual cause of the victim's death.

LLP Liabilities of partners and partnership

A limited partner in an LLP is not personally liable for an obligation of an LLP, regardless of the type of obligation (e.g., tort, contract). A limited partner is personally liable for his own personal misconduct (e.g., negligence, negligent supervision). RUPA 306(c), inc. cmt. 3. An obligation of an LLP is solely an obligation of the partnership, notwithstanding a contrary provision in the partnership agreement that existed before the vote to transform from a partnership to an LLP. RUPA 306(c). The LLP's assets may be reached to satisfy an LLP obligation.

Limited partner liability to third parties

A limited partner is generally not personally liable for the obligations of a limited partnership unless the limited partner also serves as a general partner or participates in the control of the business. RULPA 303(a). Solely doing one or more of the following activities does not constitute participation in the control of the business: i) Being a contractor for, or an agent of, the limited partnership or a general partner; or being an officer, director, or shareholder of a corporate general partner; ii) Consulting with or advising a general partner with respect to the limited partnership's business; iii) Acting as surety for the limited partnership or guaranteeing or assuming an obligation of the limited partnership; iv) Requesting or attending a meeting of partners; v) Winding up the limited partnership; or vi) Proposing, approving, or disapproving limited partnership matters, such as the sale or transfer of substantially all of the assets of the limited partnership or the admission or removal of a general or limited partner. RULPA 303(b).

Limited Partner demand on general partner

A limited partner may bring an action if the general partners have refused to do so or if an attempt to cause the general partners to bring such an action is likely to fail. In the complaint, the limited partner is required to detail such effort or explain the reasons for not making the effort.

Limited Partner standing for derivative action

A limited partner may bring an action if the general partners have refused to do so or if an attempt to cause the general partners to bring such an action is likely to fail. In the complaint, the limited partner is required to detail such effort or explain the reasons for not making the effort.

Limited Partner's transaction of business with the partnership

A limited partner may lend money to and transact other business with the limited partnership. In such transactions, the limited partner has the same rights and obligations as a person who is not a partner. RULPA 107.

Limited partner use of name

A limited partner who allows his name to be used in the name of the limited partnership is liable to a creditor who extends credit to the limited partnership, unless the creditor has actual knowledge that the limited partner is not a general partner. RULPA 303(d).

Liability of a former limited partner to partnership

A limited partner who becomes a general partner as a consequence of a conversion remains liable only as a limited partner for any obligation incurred by the limited partnership before the conversion. As a general partner, such a partner is liable for any obligation of the partnership incurred after the conversion. RUPA 903(e).

Conversion of LP to Partnership

A limited partnership may be converted into a partnership. RUPA 903(a).

Trust liquidating assets

A liquidating asset is one whose value diminishes over time because the asset is only expected to produce receipts over a limited period (e.g., patents or copyrights). Proceeds from liquidating assets are also allocated as 10% income and 90% principal.

Third-party standing

A litigant generally has no standing to bring a lawsuit based on legal claims of a third party. There are a few notable exceptions to this rule, however: i) If the third parties would experience difficulty or are unable to assert their own rights, such as a Caucasian defendant raising equal protection and due process objections to discrimination against African-American people in the selection of grand juries, Campbell v. Louisiana, 523 U.S. 392 (1998); ii) If there is a special relationship between the plaintiff and the third parties, such as an employer asserting the rights of its employees, a doctor asserting the rights of his patients in challenging an abortion ruling, Singleton v. Wulff, 428 U.S. 106 (1976), or a private school asserting its students' rights to attend despite a statute requiring attendance at public schools, Pierce v. Society of Sisters, 268 U.S. 510 (1925); and iii) If a plaintiff suffers an injury, and the injury adversely affects the plaintiff's relationship with a third party, the plaintiff may assert the third-party's rights. Craig v. Boren, 429 U.S. 190 (1976). The rule that a litigant has no standing to bring a lawsuit on behalf of a third party is based on prudential or discretionary considerations. The federal courts may refuse to hear any case on prudential-standing grounds. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004).

Living trusts

A living or revocable trust is created primarily to avoid probate of a decedent's property upon the decedent's death. A settlor transfers ownership of some or all of his assets to a revocable trust. The settlor generally names himself as the trustee of the trust and is the primary current beneficiary of the trust. Upon the settlor's death, the successor trustee named in the trust instrument is responsible for distributing the trust's assets in accord with the terms of the trust instead of a personal representative distributing the settlor's assets in accord with the terms of the settlor's will. Under a living trust, the settlor retains the flexibility of changing the successor trustee and the beneficiaries of the trust until his death. Such a trust does not protect the trust property from the settlor's creditors and does not avoid federal estate tax on the trust property.

Accomplice's mental state - minority rule

A minority of states hold a person liable as an accomplice if he intentionally or knowingly aids, induces, or causes another person to commit an offense. See, e.g., Ind. Code Ann. § 35-41-2-4. Under the minority rule, any voluntary act that actually assists or encourages the principal in a known criminal aim is sufficient for accomplice liability even if the person does not act with the intent of aiding the commission of the crime.

Misappropriators

A misappropriator is a person who uses confidential information in order to trade stock or other securities in violation of the duty of confidentiality owed to the corporation. United States v. O'Hagan, 521 U.S. 642 (1997).

Appraisal - demand for payment

After the proposed corporate action has been approved, the shareholder must make a written demand upon the corporation for payment. RMBCA §13.21.

Exaction as a taking

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is: i) An essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance legitimate state interest); and ii) A rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (state-required grant of an easement across beachfront property as a condition on the issuance of a building permit was a taking due to lack of essential nexus); Dolan v. City of Tigard, 512 U.S. 374 (1994) (state-required dedication of land to the city for use as a greenway and pedestrian/bicycle pathway in exchange for permit to expand a store and parking lot was a taking due to lack of rough proportionality). In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact. The government's conditions must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money rather than property rights. Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. ___, 133 S. Ct. 2586 (2013). These requirements are limited to exactions; they do not apply to regulatory takings. Lingle v. Chevron U.S.A. Inc., supra, (rent cap was not an exaction taking, but instead was a valid regulation under the Takings Clause).

Mandatory presumption and due process

A mandatory presumption regarding an element of an offense violates the due-process requirement. Sandstrom v. Montana, 442 U.S. 510, 522 (1979) (jury instruction that a person intends the ordinary consequences of his voluntary acts constituted a mandatory presumption when the crime—deliberate homicide—required proof of intent). This could include either a conclusive presumption that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case), or a rebuttable mandatory presumption (which shifts the burden of proof regarding the element of the offense). To the extent that these presumptions require the trier of fact to accept a fact as proving an element of the crime and disallow the trier of fact from rejecting it, or shift the burden of an element to the defense, they are unconstitutional. County Court, 442 U.S. at 159; Sandstrom, 442 U.S. at 524.

Mandatory trust

A mandatory trust is the most restrictive type of trust; it is essentially the opposite of a discretionary trust. The trustee of a mandatory trust has no discretion regarding payments; instead, the trust document explains specifically and in detail how and when the trust property is to be distributed.

Mandatory versus Discretionary Trusts

A mandatory trust requires the trustee to distribute all trust income. To protect the interests of the beneficiaries, a settlor may instead opt to create a discretionary trust, under which the trustee is given the power to distribute income at his discretion. The trustee does not abuse his discretion unless he acts dishonestly or in a way not contemplated by the trust creator.

Marriage, violation of a prohibitory rule, and choice of law

A marriage that is valid in the state where it took place but that violates a prohibitory rule of the domicile of one of the parties will be void in the state where the marriage would have been prohibited if the parties immediately return to that state and become domiciled there. A prohibitory rule is a rule that expresses the strong public policy of a state, such as rules against bigamy, incest, or marriage below a minimum age. Even though one state may refuse to recognize such a marriage, other states are not required to respect such policy and may choose to recognize the marriage.

LLC Dissociation

A member can withdraw or dissociate at any time and without reason, even if doing so violates the operating agreement, by providing notice to the LLC. Written notice is not required under the ULLCA. Dissociation does not discharge the member's interest or liability, and does not necessarily trigger dissolution and winding up. Rather, by dissociating the member relinquishes his right to participate in the LLC and is entitled to distributions by the LLC only if the continuing members receive payment.

LLC Liabilities

A member of an LLC is generally not liable as a member for an LLC's obligations. If a member renders professional services in an LLC, the member, as well as the LLC, may be liable for torts committed while rendering such services. A manager or a managing member of an LLC is not personally liable for obligations incurred on behalf of the LLC. Members of a manager-managed LLC do not have the right to maintain a direct action against the manager of the LLC when the alleged misconduct caused harm only to the LLC.

Benevolent trusts

A merely benevolent trust is not a charitable trust unless the acts called for therein fall under the acceptable charitable purposes listed above. Most courts no longer belabor the distinction between benevolent and charitable trusts.

Parent-subsidiary merger

A merger between a parent corporation and a subsidiary corporation when the parent owns at least 90% of the voting power of each class of outstanding stock of the subsidiary may occur without the approval of the shareholders of the subsidiary. A parent corporation may also effect a merger between two 90% or more owned subsidiary corporations without the need for approval by the shareholders of either corporation. In all these mergers, approval by a subsidiary's board of directors is also not required. RMBCA §11.05.

Corporate merger generally

A merger is the combination of two or more corporations such that only one corporation survives. The surviving corporation may be created as a result of the merger, rather than existing before the merger, in which case the process is referred to as a "consolidation." RMBCA §§ 1.40, 11.01, 11.02.

Minnow-whale merger

A merger of a small corporation (i.e., a "minnow") into a large corporation (i.e., a "whale") may not require approval of the shareholders of the surviving large corporation. Approval is not required if the merger cannot result in an increase of more than 20% in the voting power of the outstanding stock of the surviving corporation, if the articles of incorporation of the surviving corporation will not differ from the articles before the merger, and if the premerger shareholders of the surviving corporation are otherwise unaffected by the merger. RMBCA §§ 6.21(f), 11.04.

Transferability of future interests in trust

At common law, vested remainders were transferable, and contingent remainders were not. The modern trend allows the transfer of both vested and contingent remainders.

No-Contest Clause

A no-contest clause (also called an in terrorem clause) is an express clause within a will designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so. The majority of states and the UPC have held no-contest clauses to be unenforceable against claimants as long as the claimant had probable cause to contest. If the claim is spurious, then the clause is enforceable. Unif. Probate Code §§ 2-517; 3-905. A minority of states give the no-contest provision full effect, regardless of whether probable cause to challenge existed.

Authority over partnership property held in partner's name

A partner has the authority to transfer partnership property held in one or more partners' names by executing an instrument of transfer (e.g., a deed) in the partners' names. This authority exists whether or not the instrument transferring the property to the partnership reflected the existence of the partnership or the status of the transferees as partners. RUPA 302(a)(2), (3).

Authority over partnership property held in partnership name

A partner has the authority to transfer partnership property held in the partnership's name by executing an instrument of transfer (e.g., a deed) in the partnership's name. This authority is subject to limitation or elimination by a statement of partnership authority. RUPA 302(a)(1).

Partnership transfer to a third party

A partner has the right to transfer his partnership interest to a third party. The transfer (e.g., assignment) may include his entire interest or only part of it. RUPA 503(a)(1).

Partner as agent

A partner is an agent of the partnership for its business purposes. RUPA 301(1). As an agent, the partner can commit the partnership to binding contracts with third parties.

Partnership statement of denial

A partner may file a statement of denial, which may deny any fact asserted in a statement of partnership authority and may specifically deny any grant of authority. A person named as a partner may also file a statement that denies that status. RUPA 304.

Partnership - indeminification

A partner may incur a personal liability in the ordinary course of conducting partnership business or in order to preserve the partnership's business or property. The partnership is required to indemnify the partner for such liabilities. RUPA 401(c).

Partnership - reimbursement

A partner may make a loan in furtherance of the ordinary business of the partnership or to preserve the partnership's business or property. The partnership is required to repay the loan or reimburse the partner for the advances, including interest from the date of the loan or advance. RUPA401(c)?(e).

Partner as plaintiff

A partner may pursue a legal action against the partnership or another partner to enforce the partner's rights under the partnership agreement or the RUPA. In addition, a partner may pursue a legal action to enforce the partner's rights and otherwise protect the partner's interests that arise independently of the partnership relationship. RUPA 405(b).

Partner torts

A partner may sue another partner to recover for injuries caused by the tortfeasor partner. The tortfeasor's negligence cannot be imputed to a plaintiff-partner to prevent the injured partner from suing. RUPA 405, cmt2.

Use of partnership property

A partner may use or possess partnership property only on behalf of the partnership. RUPA 401(g). A partner who derives a personal benefit from the use or possession of partnership property is required to compensate the partnership for such benefit. RUPA 404(b).

Limitation on dissociated partner's liability

A partner who has dissociated from a partnership generally continues to be liable for any partnership obligation incurred before the dissociation. In addition, a dissociated partner may be liable for partnership obligations incurred after the dissociation.

LP compromise of obligation

A partner who is required to contribute or to return money or other property paid or distributed can compromise this obligation only with the consent of all partners. RULPA 502(c).

Partner actual authority

A partner's act that was authorized by the partnership binds the partnership. RUPA 301(2). Actual authority includes both express authority and implied authority. i) Express authority can arise from the partnership agreement itself, an authorization of the partners, or a statement of authority filed with the state. ii) Implied authority is based on a partner's reasonable belief that an action is necessary to carry out his express authority.

Partner Apparent authority

A partner's act that was not authorized by the partnership may nevertheless bind the partnership under the principle of apparent authority. For apparent authority to apply, the partner must perform the unauthorized act in the ordinary course of apparently carrying on either the partnership business or business of a kind carried on by the partnership. In addition, the third party with whom the partner was dealing cannot hold the partnership liable when that party knew or had received notification that the partner lacked authority. RUPA 301(2).

Partner disassociation

A partner's dissociation does not necessarily cause the dissolution of the partnership and the winding up of its business (see II.C.1. "Events Causing Dissolution," infra). However, it does have a variety of other consequences for both the partner and the partnership.

Dissociated Partner's duties

A partner's duty not to compete terminates upon dissociation. The dissociated partner's other duties of loyalty and care terminate with respect to post-dissociation events, unless the partner participates in winding up the partnership's business if the partnership itself dissolves. RUPA 603(b).

Partnership's knowledge and notice

A partner's knowledge or notice of a fact relating to the partnership is generally immediately imputed to the partnership. An exception exists when a fraud on the partnership is committed by or with the consent of the partner. RUPA 102(f).

LP right to distribution

A partner's right to any type of distribution can be specified in the partnership agreement. If it is not, a partner does not have a right to receive a distribution from the limited partnership before withdrawal or dissolution of the partnership. RULPA 601. Upon withdrawal from the partnership, a partner has the right to receive a distribution of the fair value of his partnership interest, as measured on the date of withdrawal, within a reasonable time after withdrawal. RULPA 604.

Limits on partnership agreement restrictions on disassociation

A partnership agreement cannot prevent a partner from withdrawing from the partnership, but it can require that the partner's notice of withdrawal be in writing. RUPA 103(b)(6). Similarly, a partnership agreement cannot prevent the partnership or other partners from seeking judicial expulsion of a partner. RUPA 103(b)(7).

Dissolution of partnership for a term or undertaking

A partnership for a definite term or particular undertaking is dissolved when: i) The term expires or the undertaking is completed; ii) All partners agree to dissolve the partnership; or iii) A partner is dissociated due to death, bankruptcy, or other circumstance, and within 90 days of such occurrence, at least half of the remaining partners agree to dissolve the partnership. RUPA 801(2).

Partnership as a separate entity

A partnership is a legal entity that is distinct from its partners. RUPA 201. A partnership may hold property and can also sue and be sued. RUPA 203, 307. Partners are not protected from personal liability for the partnership's obligations (unlike shareholders in a corporation, who are not personally liable for their corporation's obligations).

Recovery of partnership property from transferee

A partnership may be able to recover partnership property transferred by a partner without authority. RUPA 302(b).

Conversion of partnership to LP

A partnership may be converted into a limited partnership. RUPA 902(a).

Partnership changes and termination

A partnership may be converted into one or more partnerships or limited partnerships. RUPA905. Some states also specifically recognized the right of a limited partnership to merge into one or more partnerships or limited partnerships. See Revised Uniform Limited Partnership Act (RULPA) at § 1102 (2001). In addition, pursuant to the Model Business Corporation Act (MBCA), a corporation may merge with one or more partnerships or limited partnerships. MBCA § 11.02.

Statement of partnership authority

A partnership may file a statement of partnership authority. This statement may specify the extent of a partner's authority to enter into transactions on behalf of the partnership. RUPA 303.

Partnership as plaintiff

A partnership may pursue a legal action against a partner for breach of the partnership agreement or for violating a duty owed to the partnership that caused the partnership harm. RUPA 405(a).

Dissolution of LP

A partnership terminates after it is dissolved and its affairs are wound up. The following events cause a partnership to dissolve: i) The occurrence of an event specified in the partnership agreement or reaching the termination date specified in the certificate of limited partnership; ii) The written consent of all partners; iii) The withdrawal of a general partner or other occurrence in which the general partner ceases to be a general partner, unless there is at least one other general partner to carry on the partnership business or, within 90 days, all partners agree in writing to carry on the business and appoint any necessary general partners; or iv) A decree of judicial dissolution based on a determination that it is not reasonably practical to carry on the business in conformity with the partnership agreement. RULPA 801, 802.

Homicide barring succession

A party cannot take property from a decedent when the party was responsible for the decedent's death. This includes an intestate share, an elective share, an omitted spouse's share, exempt property, a homestead allowance, and a family allowance. Additionally, a joint tenant loses the right of survivorship benefits. The UPC and the majority of jurisdictions treat the killer as if he had predeceased the decedent. Unif. Probate Code § 2-803(b).

Standing to assert a Tenth Amendment violation

A party has standing to challenge the constitutionality of a federal statute on the grounds that it exceeds Congress's enumerated powers and intrudes upon the powers reserved to the states by the Tenth Amendment. Bond v. United States, 564 U.S. 211 (2011) (defendant prosecuted for violation of federal statute).

Permissive presumption and due process

A permissive presumption (i.e., a presumption that the trier of fact is not compelled to accept and that does not shift the burden of proof) regarding an element of an offense does not violate the due-process requirement that the prosecution must prove each element of an offense unless the presumption is irrational. A presumption is not irrational if it is more likely than not to flow from the proven fact on which it depends. County Court v. Allen, 442 U.S. 140, 163-164 (1979) (upholding the statutory presumption that the occupants of a car in which firearms are found are in possession of the firearms).

"Substantial Economic Effect"

Congress has the power to regulate any activity, intra- or interstate, that in and of itself or in combination with other activities has a "substantial economic effect upon" or "effect on movement in" interstate commerce.

Criminal Defense - Defense of Property

A person in lawful possession of property that is threatened by the conduct of another, and who has no time to seek assistance from law enforcement, may take reasonable steps, including the use of nondeadly force, to protect the property. To use force, the defender must reasonably believe that the real property is in immediate danger of unlawful trespass or that personal property is in immediate danger of being carried away, and that the use of force is necessary to prevent either. The force cannot be unreasonably disproportionate to the perceived harm. There is no right to use deadly force in defending property, with one exception. Generally, a person may use deadly force to prevent or terminate forcible entry into a dwelling if the occupant reasonably believes that the intruder intends to commit a felony inside. The use of deadly force against an intruder exiting the dwelling is generally not permissible. A deadly mechanical device cannot be used to protect property, although non-deadly mechanical devices or objects (such as barbed wire) may be used.

Unreasonable Seizure

A person is seized by the police when the officer physically touches a subject or when the subject submits to the officer's show of authority. Terry v. Ohio, 392 U.S. 1 (1968). When the actions of the police do not show an unambiguous intent to restrain or when the individual's submission to a show of governmental authority takes the form of passive acquiescence, a seizure occurs only if, in view of the totality of the circumstances, a reasonable innocent person would believe he was not free to leave. The test is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.

Due Process - length of residency and elections

A person may be required to be a resident of a governmental unit (e.g., state, city) for a short period prior to an election in order to vote in that election. Marston v. Lewis, 410 U.S. 679 (1973) (50-day period upheld); Dunn v. Blumstein, 405 U.S. 330 (1972) (three-month and one-year periods struck down).

Admission of general partner to limited partnership

A person may become a general partner upon the creation of the limited partnership. Thereafter, a person may be admitted as a general partner only upon the written consent of all partners, unless the partnership agreement otherwise provides. (Note: An assignee of a general partner's partnership interest may become a limited partner but not a general partner, as long as the partnership agreement permits it or all other partners consent.) RULPA 401, 704(a).

Limited Partner admission

A person may become a limited partner upon the creation of the limited partnership. Thereafter, that person may be admitted as a limited partner by acquiring her interest directly from the partnership only upon the written consent of all partners, unless the partnership agreement otherwise provides. An assignee of a partnership interest, including a general or a limited partner's interest, may become a limited partner if the partnership agreement permits or all partners consent. RULPA 301, 704(a).

Public employee political association

A person may only be punished or deprived of public employment based on political association if that individual: i) Is an active member of a subversive organization; ii) Has knowledge of the organization's illegal activity; and iii) Has a specific intent to further those illegal objectives. Scales v. United States, 367 U.S. 203 (1961) (conviction based on active, knowing, and purposive membership in an organization advocating the violent overthrow of the government upheld).

Post-adoption acquisition

A person who acquires property rights after the adoption of a regulation that affects those rights may nevertheless challenge the regulation as an unconstitutional taking. Palazzolo v. Rhode Island., 533 U.S. 606 (2001).

Ownership of all partnership interests

A person who holds all of the partners' interests in a partnership, such as by purchase or by being the sole surviving partner, effectively has title to all of the partnership property and has the power to transfer that title to himself in the name of the nonexistent partnership. RUPA 302(d).

Intent to inflict serious bodily harm

A person who intends to do serious bodily injury or "grievous bodily harm" but actually succeeds in killing is guilty of murder despite the lack of intention to kill. Intent to inflict serious bodily harm is an unintentional killing that results in death. Intent to inflict serious bodily harm can be inferred from the use of a deadly weapon to inflict the bodily injury.

Persons not accomplices

A person who is a member of the class protected by a statute cannot be an accomplice. Similarly, when the crime requires another party, the other party is not, simply by engaging in the criminal act, guilty of the crime as an accomplice. For example, the buyer of drugs is not guilty of the crime of distributing drugs simply by purchasing the drugs (but of course he may be guilty of a different crime).

Power of person winding up partnership

A person who is winding up the partnership business may dispose of and transfer partnership property and may discharge the partnership's liabilities. That person also may preserve the partnership business or property as a going concern for a reasonable time to maximize its value. In winding up the partnership's business, the person may distribute assets of the partnership to settle partners' accounts. RUPA 803(c).

Will Fraud and Contesting Probate

A person who objects to a will based on fraud or undue influence must contest its probate; the will may be partially probated if the fraud or undue influence goes only to certain provisions. If the fraud or undue influence prevented the execution of a will in favor of the plaintiff, then she may request the imposition of a constructive trust, although some courts impose intestate succession laws.

Compounding a crime

A person who receives valuable consideration for agreeing not to prosecute a crime may be guilty of compounding a crime.

Partnership - no duty to deny

A person who, without her consent, is held out by another as a partner is not under a duty to deny that representation. Merely being named by another in a statement of partnership authority is not enough to create liability as a partner. Furthermore, failing to file or amend a statement of dissociation does not create liability as a partner. RUPA 308(d), inc. cmt.

Negotiation with a governmental agency as evidence

A person's conduct or statements made during compromise negotiations with a governmental agency (e.g., the IRS) during the exercise of its regulatory, investigative, or enforcement authority may be introduced in a subsequent criminal case against the person.

Due process - write-in voting

A person's right to vote does not extend to the right to vote for any possible candidate. A state may ban all write-in candidates in both primary and general elections, at least when the state provides reasonable means by which a candidate can get on the ballot. Burdick v. Takushi, 504 U.S. 428 (1992) (state's legitimate interests, such as preventing unrestrained factionalism, outweighed the limited burdens placed on the right to vote by the ban).

Plan of partnership merger

A plan of merger must set forth (i) the name of each partnership or limited partnership that is a party to the merger, (ii) the name of the surviving entity into which the other entities will merge, (iii) the type of entity the surviving entity will be, (iv) any terms and conditions of the merger, (v) the manner of converting interests and obligations of the merging entities into interest or obligations of the surviving entity, and (vi) the street address of the surviving entity's executive office. RUPA905.

Plea bargain

A plea bargain between the prosecutor and the defendant is treated as a contract. The bargain may involve the crimes with which the defendant has been charged, such as a promise by the prosecutor to drop specific charges in exchange for the defendant's promise to plead guilty to other charges, or the defendant's sentence, such as a promise by the prosecutor to recommend a particular sentence in exchange for the defendant's guilty plea.

Criminal Defense - use of force to arrest

A police officer can use nondeadly force to arrest a suspect. A police officer can use deadly force to arrest a suspect if the suspect represents a threat to either the officer or third parties.

Inter vivos trust - pour-over trust

A pour-over devise is a provision in a will that directs the distribution of property to a trust upon the happening of an event, so that the property passes according to the terms of the trust without the necessity of the will reciting the entire trust.

Pour-over trust

A pour-over devise is a provision in a will that directs the distribution of property to a trust upon the happening of an event, so that the property passes according to the terms of the trust without the necessity of the will reciting the entire trust. Under the common-law doctrine of "incorporation by reference," if a will refers to an unattested document that is in existence at the time the will is signed, then the terms of that document could be given effect in the same manner as if it had been properly executed. Under this doctrine, for example, the terms of an amended revocable trust would not apply to the disposition of the probate estate assets (because the amendment was not in existence at the time the will was executed). However, the necessity for this doctrine has been obviated under the Uniform Testamentary Additions to Trusts Act (UTATA), codified at the Uniform Probate Code (UPC) § 2-511. Under the UTATA, a will may "pour over" estate assets into a trust, even if the trust instrument was not executed in accordance with the Statute of Wills, as long as the trust is identified in the will, and its terms are set forth in a written instrument. Furthermore, if these requirements are met, the pour-over bequest is valid even if the trust is unfunded, revocable, and amendable. UPC §2?511.

Powers of Appointment

A power of appointment describes the ability of the testator (donor) to select an individual (donee) who may be given the authority to dispose of certain property under the will, similar to an agent. The power is personal to the donee, meaning the donee cannot transfer the power to anyone else. The power may be (i) testamentary (i.e., exercisable only by the donee's will) or (ii) presently exercisable (i.e., the donee may exercise the power during his lifetime).

General Power of Appointment

A power of appointment in which there are no restrictions or conditions on the donee's exercise of the power is a general power of appointment. Thus, the donee may appoint himself, his estate, his creditors, or the creditors of his estate as a new owner. As such, if the donee exercises a general power, then the donee's creditors can reach the appointive property. The same holds true if the donee is also the donor of the power. Failure to exercise a general power of appointment causes the appointive property to revert back to the donor's estate. See, Unif. Probate Code §2-608.

Powers of Attorney

A power of attorney is an authorization to act on someone else's behalf in a legal or business matter. The person authorizing the other to act is the principal, and the one authorized to act is the agent. To be valid, a power of attorney must be in writing, signed, and dated. The principal must be mentally competent at the time she signs the document. Reasonable compensation is allowed based on the responsibilities to be performed and reimbursement of costs. A power of attorney becomes ineffective if the grantor dies or becomes incapacitated.

Not Hearsay - Prior Statement of Identification

A previous out-of-court identification of a person after perceiving that person (e.g., lineup) is not hearsay and may be admissible as substantive evidence. Fed. R. Evid. 801(d)(1)(C). Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification. United States v. Owens, 484 U.S. 554 (1988).

Principal of the crime

A principal is the person whose acts or omissions are the actus reus of the crime, in other words, the perpetrator of the crime. The principal must be actually or constructively present at the scene of the crime. A principal is constructively present when some instrumentality he left or controlled resulted in the commission of the crime. If two or more people are directly responsible for the actus reus, they are joint principals (i.e., co-principals).

Affirmative Action

Programs that favor racial or ethnic minorities are also subject to strict scrutiny. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (overruling application of the intermediate standard to federal discrimination).

Not Hearsay - Prior Consistent Statements

A prior consistent statement, whether made under oath or not, may be admissible (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying, only if it was made before the declarant had reason to fabricate or the improper influence or motive arose; or (ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground. Fed. R. Evid. 801(d)(1)(B).

Not Hearsay - Prior Inconsistent Statements

A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition may be admissible to impeach the declarant's credibility and as substantive evidence. Statements made in a prior legal action that is unrelated to the current action may be admitted under this rule. Fed. R. Evid. 801(d)(1)(A). Statement not made at a former proceeding: An inconsistent statement that was not made under penalty of perjury may be admissible to impeach a witness but is not admissible under this provision as substantive evidence.

Free Speech and prior restraints

A prior restraint is a regulation of speech that occurs in advance of its expression (e.g., publication or utterance). Prior restraints are generally presumed to be unconstitutional, with limited exceptions. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). These rare exceptions require at a minimum that: i) There is a particular harm to be avoided (like publication of troop movements); and ii) Certain procedural safeguards are provided to the speaker. Examples of such safeguards include: a) The standards must be narrowly drawn, reasonable, and definite, Butterworth v. Smith, 494 U.S. 624 (1990); b) The censoring body must promptly seek an injunction, Teitel Films v. Cusack, 390 U.S. 139 (1968); and c) There must be a prompt and final judicial determination of the validity of the restraint, National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977). The burden is on the government to prove that the material to be censored is not protected speech. Freedman v. Maryland, 380 U.S. 51 (1965). Prior restraints have been rejected even when national security was at issue, New York Times v. United States, 403 U.S. 713 (1971) (Pentagon Papers), and even when press coverage threatened the fairness of a trial, Nebraska Press Ass'n v. Stewart, 427 U.S. 539 (1976) (prior restraint must be the only way to accomplish a goal).

Search in prison

A prison inmate has no reasonable expectation of privacy in his cell. The limitations on Fourth Amendment rights are justified by the need to maintain institutional security and preserve internal order and discipline. Hudson v. Palmer, 468 U.S. 517 (1984). Unlike a convict, a pretrial detainee may have a limited expectation of privacy in his cell. However, a detainee's cell may be subject to a routine search, and the detainee's person may be subject to a strip search or a full-body search after a contact visit with someone from the outside. Bell v. Wolfish, 441 U.S. 520 (1979). Jail administrators may also require all arrestees committed to the general population of a jail to undergo no-touch visual strip searches, even if the arrest was for a minor offense and even in the absence of reasonable suspicion that the arrestee possesses a concealed weapon or other contraband. Florence v. Board of Chosen Freeholders of County of Burlington, 566 U.S. ____, 132 S. Ct. 1510 (2012).

Eighth Amendment and physical force

A prisoner need not show serious injury to recover for a violation of the Eighth Amendment prohibition against cruel and unusual punishment. The inquiry is whether the physical force was applied in a good-faith effort to maintain or restore discipline, rather than applied maliciously and sadistically to cause harm.

Private express trust

A private express trust clearly states the intention of the settlor to transfer property to a trustee for the benefit of one or more ascertainable beneficiaries.

Privilege and Waiver

A privilege may be waived if the person who holds the privilege: i) Fails to assert the privilege in a timely manner (i.e., when the testimony is offered); ii) Voluntarily discloses, or allows another to disclose, a substantial portion of the communication to a third party, unless the disclosure is privileged; or iii) Contractually waives the privilege in advance. A wrongful disclosure without the privilege holder's consent does not constitute a waiver. For limitations on waiver of the attorney-client privilege due to inadvertent disclosure, see § 3.c. Effect of disclosure on waiver, below.

Professional corporation

A professional corporation is a corporation with a purpose that is statutorily limited to the rendering of a professional service. A shareholder in a professional corporation must be a member of the applicable profession. In addition, a professional corporation does not shield an employee from liability arising from her own malpractice. However, it may provide protection against vicarious liability arising from malpractice by other professionals in the corporation.

Promoter Liability for pre-incorporation agreements

A promoter is personally liable for knowingly acting on behalf of a corporation before incorporation and is jointly and severally liable for all liabilities created while so acting, even after the corporation comes into existence, unless a subsequent novation releases the promoter from liability. Revised Model Business Corporation Act (RMBCA) § 2.04. To establish liability, it is insufficient that a person should have known that the corporation was not formed; actual knowledge of the entity's pre-incorporation status is required. See Sivers v. R & F Capital Corp., 858 P.2d 895, 898 (Or. Ct. App. 1993). In addition, if a party who contracts with a promoter knows that the corporation has not yet been formed and agrees to look only to the corporation for performance, then the promoter is not liable.

Promoter Fiduciary duty

A promoter stands in a fiduciary relationship with the pre-incorporated corporation. The promoter can be liable to the corporation for violating a fiduciary duty, such as by making a secret profit (e.g., failing to disclose a commission on a pre-incorporation transaction).

Prosecutorial Misconduct

A prosecutor may not: i) Make material misstatements of law or fact; ii) Elicit information from the defendant outside the presence of his counsel; iii) Express opinions about the defendant's guilt or innocence; iv) Make unfair or improper remarks about the defendant, his counsel, or witnesses; v) Comment on the defendant's failure to testify at trial; or vi) Make improper remarks to the jury to inflame their passions to convict for an improper reason.

Impartial Judge

Due process requires that a judge possess neither actual nor apparent bias. If actual or apparent bias exists, the judge must follow a recusal process in the federal or state jurisdiction. The impermissible bias or prejudice usually must stem from an extrajudicial source.

Due process - public employees

A public employee who may be discharged only for cause has a property interest in his job and therefore is entitled to notice of termination and a pre?termination opportunity to respond. A formal hearing is not required, as long as there is pre-termination notice, an opportunity to respond to the decision maker, and a post-termination evidentiary hearing. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). If there is a significant reason for immediately removing a "for-cause" employee from the job, a prompt post-suspension hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process. Gilbert v. Homar, 520 U.S. 924 (1997).

Defamation of Public Figure and Free Speech

A public figure is someone who is known to the general public and includes any person who has voluntarily injected herself into the public eye. The plaintiff must prove that the defendant acted with actual malice, i.e., knowledge of the statement's falsity or reckless disregard for whether it was true or false. New York Times v. Sullivan, 376 U.S. 254 (1964). Scientists who publish in scientific journals, criminals, and spouses of wealthy persons are not considered public figures.

Public welfare offense

A public welfare offense is a strict-liability crime for which no mens rea is required. Conduct that is subject to stringent public regulation includes that which could seriously threaten the public's health or safety or is inherently dangerous.

Grant of partnership authority

A purchaser of partnership property (or other person who gives value in a transaction with a partner) may point to a grant of authority contained in a filed statement as conclusive evidence of such authority. There is no requirement that the person relied upon or was aware of the statement at the time of the transaction. However, the person cannot have had actual knowledge that the partner did not in fact possess the necessary authority to enter into the transaction. RUPA 303(d).

Hearsay Exception - Records of Regularly Conducted Activity

A record (e.g., memorandum, report, data compilation) of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if: i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling; ii) The making of the record was a regular practice of that activity; and iii) The record was made at or near the time by (or from information transmitted by) someone with knowledge. Although this exception is commonly referred to as the "business records" exception, it extends to any regularly conducted activity of an organization, including a nonprofit organization. Fed. R. Evid. 101(b)(4); 803(6)(A)-(C).

Public records of vital statistics

A record of a birth, death, or marriage is not excluded as hearsay if the event is reported to a public office in accordance with a legal duty. Fed. R. Evid. 803(9).

Trust and vested remainder

A remainder is vested if the holder of the interest is ascertainable and there is no express condition precedent required before the interest becomes possessory. Under the common law, if a vested remainder is created by a trust, and the trust provides that should the beneficiary predecease the life tenant, the remainder should pass to the beneficiary's child, then the remainder divests only if the beneficiary has issue. In contrast, if the beneficiary dies without issue, the remainder does not divest, and it passes to the beneficiary's estate. Under the UPC, the result differs. Future interests under the UPC are contingent on the beneficiary surviving the distribution date. If the beneficiary does not survive the distribution date, then the interest does not vest and does not pass to either the beneficiary's issue or the beneficiary's estate.

Remedial trusts

A remedial trust is an equitable remedy created by operation of law and therefore is not subject to the trust creation requirements, nor can it be challenged on Statute of Wills or Statute of Frauds grounds. Remedial trusts are passive in that the sole duty of the trustee is to convey the trust property to the beneficiary. After this has been accomplished, the trust terminates.

Residuary

A residual legacy is a legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied.

Due Process - residency and voting

A restriction on the right to participate in the political process of a governmental unit imposed upon those who reside within its borders is typically upheld as justified on a rational basis; nonresidents generally may be prohibited from voting. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) (citizens who lived outside city boundaries could be denied the right to vote in city elections, even though they were subject to business licensing fees imposed by the city). A person must be given the opportunity to prove residency before being denied the right to vote because of lack of residency. Carrington v. Rash, 380 U.S. 89 (1965).

Enforceability of stock sale restriction

A restriction on the transfer of a security, even if otherwise lawful, may be ineffective against a person who has no knowledge of the restriction. Unless the security is certified and the restriction is conspicuously noted on the security certificate, that restriction is not enforceable against a person who has no knowledge of it. RMBCA §6.27(b).

Revocable Trust Presumption

A revocable trust can be terminated by the settlor at any time. An irrevocable trust usually cannot be terminated. Under the majority rule, a trust is presumed to be irrevocable unless it expressly states otherwise. Under the Uniform Trust Code (UTC), however, and in a minority of jurisdictions, the presumption is just the opposite—a trust is presumed revocable unless it expressly states that it is irrevocable. UTC § 602(a).

Sales tax

A sales tax imposed on the seller of goods is valid as long as the sale takes place within the state. Sales tax generally does not discriminate against interstate commerce as long as there is a substantial nexus between the taxpayer and the state (e.g., his business is there), and the tax is properly apportioned.

Charitable trusts

For a trust to be considered charitable, it must have a stated charitable purpose and it must exist for the benefit of the community at large or for a class of persons the membership in which varies. For public-policy reasons, charitable trusts are usually construed quite liberally by the courts.

Unknown conspirators, single conspiracy - hub-spoke relationship

A scheme that resembles a hub with spokes, such as the processing of fraudulent loans by one person that were submitted by numerous other individuals, is less likely to have a community of interest. In such a case, the "hub" and each "spoke" are usually treated as having formed a separate conspiracy from all of the other hub-spoke combinations. Thus, the common hub will be liable for all of the conspiracies, but the spoke members are not liable for the acts of the other conspirators.

Diversity in public elementary and high schools

A school district may not assign students to schools on the basis of race unless it is necessary to accomplish a compelling interest—e.g., remedy past discrimination. However, a district may use facially race-neutral criteria that may have the same effect, such as strategic site selection for new schools or the redrawing of attendance zones. Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007). The Equal Protection Clause applies only to governmental action, so private persons generally are not restricted by it (see X. State Action, supra). Discrimination by private persons in various areas, such as employment, housing, and public accommodations, is nonetheless regulated by federal statute pursuant to Congress's power under the enabling clauses of the Thirteenth and Fourteenth Amendments and the Commerce Clause, as well as in most states by statute.

Warrant where seizure not specified

A search warrant confers authority to search only the places and persons named in it. That said, any evidence of a crime, instrumentalities or fruits of a crime, or contraband found in plain view while properly executing the warrant, whether or not specified in the warrant, may be seized (see §I.C.4.e., "Plain view" doctrine, infra).

Search warrant and third party premises

A search warrant may be issued to search the premises of a person who is not suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

Search Warrant and particularity

A search warrant must describe with particularity the place to be searched and the objects to be seized. United States v. Grubbs, 547 U.S. 90 (2006). Warrants that, in addition to describing specific documents to be seized, also refer to "other fruits, instrumentalities and evidence of the crime at this [time] unknown" are not converted into illegal general warrants by the inclusion of such language. The reference to a "crime" has been interpreted as being limited to a particular crime (e.g., false pretenses), rather than any crime. Andresen v. Maryland, 427 U.S. 463 (1976). A warrant need not specify the manner of its execution.

Warrantless entry - emergency situations

A search without a warrant is authorized whenever there is a reasonable apprehension that the delay required in obtaining the warrant would result in the immediate danger of evidence destruction or the threatened safety of the officer or the public, or when a suspect is likely to flee before a warrant can be obtained. Whether a person is in need of aid is judged on the basis of a police officer's objective reasonable belief that the person needs aid. Aid includes emergency assistance to an injured occupant as well as protection of an occupant from imminent injury. Neither the officer's subjective motive for searching without a warrant nor the seriousness of the crime the officer was originally investigating are relevant in making this determination. Brigham City v. Stuart, 547 U.S. 398 (2006).

Presidential advisor immunity

A senior presidential advisor (e.g., cabinet member) is not automatically entitled to enjoy derivatively the protection of absolute executive immunity. Although the Supreme Court has stated that such an advisor may be entitled to such protection when performing special functions that are vital to national security or foreign policy, the Court has also held that an Attorney General did not qualify for absolute immunity with respect to the authorization of a warrantless wiretap for national security purposes. The burden for establishing such immunity rests with the advisor. Harlow v. Fitzgerald, 457 U.S. 800 (1982); Mitchell v. Forsyth, 472 U.S. 511 (1985).

Sentence proportionality and Eighth Amendment

A sentence that is grossly disproportionate to the crime constitutes cruel and unusual punishment. However, a lengthy sentence does not necessarily violate the Eighth Amendment. Compare Weems v. United States, 217 U.S. 349 (1910) (reversing punishment of 20 years' imprisonment for falsifying a public record) with Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding punishment of life imprisonment without the possibility of parole for drug dealing based on possession of more than 650 grams of cocaine) and Ewing v. California, 538 U.S. 11 (2003) (upholding punishment of an indeterminate sentence of 25 years to life for theft of merchandise valued at about $1,200 after conviction of at least two other felonies, at least one of which was serious or violent).

Manslaughter and adequate provocation

A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes adequate provocation. Usually mere words, such as taunts, do not. While an intentional killing committed when resisting arrest is generally murder, the intentional killing can be manslaughter if the arrest is unlawful and the defendant acts in the "heat of passion."

Suit to compel dividend

A shareholder can sue to enforce her individual right; this is not the same as a derivative lawsuit that the shareholders bring on behalf of the corporation. See, generally, Doherty v. Mutual Warehouse Co., 245 F.2d 609 (5th Cir. 1957); Knapp v. Bankers Securities Corp., 230 F.2d 717 (3d Cir. 1956) (the right to compel a dividend is a primary and a personal right of the shareholder). To prevail in a suit to compel a dividend distribution, a shareholder must prove the existence of (i) funds legally available for the payment of a dividend and (ii) bad faith on the part of the directors in their refusal to pay. See Gay v. Gay's Super Markets, Inc., 343 A.2d 577 (Me. 1975).

Shareholder suits

A shareholder may bring a direct or a derivative action against the corporation in which the shareholder owns stock. How the action is characterized will affect the requirements for bringing suit and to whom any recovery is paid.

Action to enforce shareholder rights

A shareholder may sue the corporation for breach of a fiduciary duty owed to the shareholder by a director or an officer. Typical actions are based on the denial or interference with a shareholder's voting rights, the board's failure to declare a dividend, or the board's approval or failure to approve a merger.

Shareholder voting eligibility

Typically, ownership of stock entitles the shareholder to vote. There are two basic issues regarding shareholder voting: who the owner of the stock is and when such ownership is measured.

Proxy voting

A shareholder may vote in person or by proxy. A proxy vote must be executed in writing and delivered to the corporation or its agent. A proxy is valid for 11 months unless otherwise specified. A proxy is revocable unless it expressly provides that it is irrevocable and the appointment of the proxy is coupled with an interest. Any act by the shareholder that is inconsistent with a proxy, such as attending a shareholder meeting and voting the shares, revokes the proxy. RMBCA §7.22. In the case of multiple proxies given, the last given revokes all previous proxies. Whether a proxy is coupled with an interest depends on whether the proxy holder has (i)a property right in the shares or (ii) a security interest given to him to protect him regarding any obligations he incurred or money he advanced. Typically, proxy holders who have a property interest in the shares or a security interest are those who have purchased the shares or otherwise have a business arrangement with the corporation (such as a creditor or an employee of the corporation).

Qualifying shareholders

A shareholder who is entitled to vote on a merger, an acquisition, or an amendment of the corporation's articles of incorporation has appraisal rights. In addition, a minority shareholder in a short-form merger can exercise appraisal rights, even though such a shareholder cannot vote on the merger. RMBCA §13.02(a). If a shareholder can sell his stock in a market that is both liquid and reliable, such as the New York Stock Exchange or the American Stock Exchange, the shareholder does not have a right of appraisal, because the market is providing him with the opportunity to sell his stock at its fair value. RMBCA §13.02(b).

Dissenting shareholder's right of appraisal

A shareholder who objects to a merger or an acquisition may be able to force the corporation to buy his stock at a fair value as determined by an appraisal. This right is also available for shareholders whose rights are materially and adversely affected by an amendment of the corporation's articles of incorporation. RMBCA §§ 13.01-.31.

Purpose limitation on inspection of corporate records

A shareholder's inspection right is conditional on having a proper purpose. RMBCA §16.02(c). Once a proper purpose is stated, all other purposes are considered irrelevant. A proper purpose is one that relates to the shareholder's interest in the corporation, such as determining the value of one's shares in a closely held corporation even though the shareholder does not plan to sell the shares. Improper purposes may include harassment of corporate officials, acquiring corporate secrets, or idle curiosity. Sec. First Corp. v. U.S. Die Casting & Dev. Co., 687 A.2d 563 (Del. 1997). Whether a particular document is essential to a stated inspection purpose depends on the context in which the shareholder's inspection demand arises. The shareholder has the burden of showing credible evidence of improper conduct, and must show the documents or records are essential to the stated proper purpose. Espinoza v. Hewlett-Packard Co., 32 A.3d 365 (Del. 2011).

Multiple crimes, single conspiracy

A single conspiracy may have numerous criminal objectives. Not all of the co?conspirators even need to know the identities of all of the other co?conspirators or all of the details of the criminal organization. It is only necessary that all co-conspirators agree to further the common scheme or plan. Multiple conspiracies arise when the objectives and/or crimes are not committed in furtherance of the same agreement, common scheme, and plan.

Fighting Words

A speaker may be criminally punished for using "fighting words," which are words that by their very nature are likely to incite an immediate breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Words that are simply annoying or offensive are not fighting words; there must be a genuine likelihood of imminent violence by a hostile audience. Cohen v. California, 403 U.S. 15 (1971). Statutes designed to punish only fighting words that express certain viewpoints are unconstitutional. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (the Court struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion, or gender). However, actual threats of violence are outside the protection of the First Amendment, given the need to protect individuals from (i) the fear of violence, (ii)the disruption that fear engenders, and (iii) the possibility that the threatened violence will occur. R.A.V. v. City of St. Paul, 505 at 388.

Special Power of Appointment - Exclusive

A special power of appointment is a more limited power than a general power of appointment in that it allows the donor to specify certain individuals or groups as the objects of the power, to the exclusion of others. This makes the power an exclusive special power of appointment. As such, the donor may decide to exclude the donee, the donee's creditors, the donee's estate, or the creditors of the donee's estate. In fact, a special power is presumed to be exclusive because it may favor some objects over others. In addition, the donor may make the donee's exercise of the power conditional on whatever factors, within legal bounds, the donor desires. Unlike with a general power, creditors are prevented from reaching the appointive property—even if the donee exercises the power—unless the transfer of property was intended to defraud the creditors.

Special power of attorney

A special power of attorney limits the powers to a specific function and duration, such as selling a particular piece of property when the principal is traveling or otherwise unavailable.

Abatement of specific bequests

A specific bequest may abate to satisfy a general legacy only if such intent was clearly indicated by the testator.

Specific devise

A specific legacy, devise, or bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator's estate.

Spendthrift Trust

A spendthrift trust expressly restricts the beneficiary's power to voluntarily or involuntarily transfer his equitable interest. (Note that a trust restricting only involuntary transfers would be void as against public policy.) Spendthrift provisions are often inserted into trusts to protect beneficiaries from their own imprudence. The spendthrift restriction applies only as long as the property remains in the trust, and it is inapplicable after it has been paid out to the beneficiary. An attempted transfer by the beneficiary in violation of the spendthrift restriction is effective only in that it provides authorization for the trustee to pay funds directly into the hands of the attempted transferee.

Fraud in the Inducement of Will Drafting

Fraud in the inducement is a knowingly false representation that causes the testator to make a different will than he would have otherwise made. A fraudulently procured inheritance or bequest is invalid only if the testator would not have left the inheritance or made the bequest had he known the facts.

Freedom of Association and blanket primary

A state may adopt a blanket primary system (i.e., a primary in which all voters regardless of party affiliation or lack thereof vote) that is nonpartisan. Under a nonpartisan primary system, the voters choose candidates for the general election without regard for their party affiliation. A nonpartisan blanket primary system in which a candidate identifies his own party preference or his status as an independent and that identification appears on the ballot has withstood a facial challenge, despite assertions that this self-designation violates the party's First Amendment rights as compelled speech and forced association. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008). By contrast, a partisan blanket primary system in which a party's nominees are chosen violates the party's First Amendment rights of free speech and association. Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).

Market-participant exception to state discrimination

A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against nonresident commerce as could any private business. E.g., Reeves, Inc. v. Stake, 447 U.S. 429 (1980) (state-owned cement plant may, in times of shortage, sell only to in-state buyers).

Article III - Consent

A state may consent to suit by waiving its Eleventh Amendment protection. Lapides v. Board of Regents of Univ. System of Ga., 535 U.S. 613 (2002) (state removal of case to federal court constituted a waiver).

Subsidy exception to state discrimination

A state may favor its own citizens when providing for subsidy. For example, a state may offer in-state residents a lower tuition rate to attend a state college or university than out-of-state residents. Vlandis v. Kline, 412 U.S. 441 (1973).

Speech and Incitement to Violence

A state may forbid speech that advocates the use of force or unlawful action if: i) The speech is directed to inciting or producing imminent lawless action; and ii) It is likely to incite or produce such action (i.e., creates a clear and present danger). Brandenburg v. Ohio, 395 U.S. 444 (1969). Advocacy requires the use of language reasonably and ordinarily calculated to incite persons to such action. Yates v. United States, 354 U.S. 298 (1957). The abstract expression of ideas, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as the actual incitement of violence. There must be substantial evidence of a strong and pervasive call to violence. Noto v. United States, 367 U.S. 290 (1960).

Defense to Full Faith and Credit of Foreign Judgments - Erroneous Proceedings

A state may not refuse to recognize the judgment of another state because the other state made a mistake of fact or law. Such mistakes must generally be attacked on direct appeal of the original judgment.

Due Process - replacement of elected official

A state may permit a political party to name a replacement for an elected public official from that party who dies or resigns while in office. Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982). The governor must call an election to fill a vacant congressional seat. Article I, Section 2 (House member); Seventeenth Amendment (Senator). (Note: The Seventeenth Amendment permits the state legislature to authorize the governor to appoint a temporary replacement senator.)

Fusion candidate

A state may prohibit a fusion candidate (i.e., a candidate who is nominated by more than one political party) from appearing on the general-election ballot as a candidate of multiple parties. This limitation on the associational rights of political parties is justified by the state's interests in ballot integrity and political stability. Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

Due Process - voter ID

A state may require that a citizen who votes in person present a government-issued photo ID. With regard to this neutral, nondiscriminatory requirement, the Supreme Court declined to apply a strict scrutiny standard. Crawford v. Marion County Election Bd., supra.

Undue Burden on Interstate Commerce

A state regulation that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on interstate commerce. The courts will balance, case by case, the objective and purpose of the state law against the burden on interstate commerce and evaluate whether there are less restrictive alternatives. If the benefits of the state law are grossly outweighed by the burdens on interstate commerce, then even nondiscriminatory regulation may be struck down. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). This balancing test is not a cost-benefit analysis or a form of close scrutiny of state economic regulation. United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007).

Authorized speaker vicarious statements

A statement about a subject that is made by a person who is authorized by a party to make a statement on the subject constitutes an opposing party's statement. Fed. R. Evid. 801(d)(2)(C).

Hearsay Exception - Statement of Personal or Family History

A statement concerning the unavailable declarant's own birth, adoption, marriage, divorce, legitimacy, familial relationship, or other similar fact of personal or family history is not excluded as hearsay. Fed. R. Evid. 804(b)(4).

Hearsay Exception - Learned Treatises

A statement contained in a treatise, periodical, or pamphlet is not excluded as hearsay if: i) An expert witness relied on the statement during direct examination or it was called to the expert's attention on cross-examination; and ii) The publication is established as a reliable authority by admission or testimony of the expert witness, by another expert's testimony, or by judicial notice. If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit. Fed. R. Evid. 803(18).

Hearsay Exception - Statement Made for Medical Diagnosis or Treatment

A statement describing medical history or past or present symptoms is not hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment. Fed. R. Evid. 803(4).

Hearsay Statement

A statement is a person's oral or written assertion, or it may be nonverbal conduct intended as an assertion. Fed. R. Evid. 801(a). An example of assertive conduct is a defendant nodding his head up and down to indicate a "yes" answer to a question.

Testimonial statements

A statement is considered "testimonial" if the declarant would reasonably expect it to be used in a prosecution. Such statements include affidavits, custodial examinations, prior testimony, and statements given in response to police interrogation. Crawford v. Washington, 541 U.S. 36, 40 (2004). The Supreme Court has also held that certificates of analysis, which state the results of state laboratory tests, are testimonial evidence that may not be admitted without accompanying live testimony by the analyst who conducted the tests. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 340 (2009). It is not sufficient to substitute the testimony of another analyst who is familiar with the testing protocol but did not perform or observe the tests or sign the report. Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011).

Hearsay Exception - Statement Against Interest

A statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement: i) Was against the declarant's interest at the time it was made; and ii) Would not have been made by a reasonable person unless he believed it to be true. Under this exception to the hearsay rule, the statement must have been against the declarant's proprietary or pecuniary interest, have invalidated the declarant's claim against someone, or have exposed the declarant to civil or criminal liability. A statement that would subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Fed. R. Evid. 804(b)(3).

Not Hearsay - Opposing Party's Statement

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. The statement may have been made by the party in his individual or representative capacity (e.g., trustee). Fed. R. Evid. 801(d)(2)(A). This type of statement traditionally was known as an admission of a party-opponent. Unlike most testimony by a lay witness, an opposing party's statement may be admitted even if it is not based on personal knowledge. In addition, an opposing party's statement in the form of an opinion may be admitted, even if the statement is about a matter that normally would be beyond the scope of lay witness opinion testimony. Fed. R. Evid. 801(d)(2), Notes of Advisory Committee.

Employee vicarious statements

A statement made by a party's agent or employee constitutes an opposing party's statement if it was made concerning a matter within the scope of and during the course of the relationship. Fed. R. Evid. 801(d)(2)(D).

Not Hearsay - Vicarious Statements

A statement made by one person may be imputed to another based on the relationship between them. In determining whether a statement constitutes an opposing party's statement, the statement is considered, but the statement itself cannot establish the necessary relationship between the parties.

Non-privileged attorney-client statements

A statement made to an attorney that is not about legal advice or services sought by the client is not privileged. This includes statements regarding the fact of employment, the identity of the client, and the fee arrangements for the representation. If providing such information would divulge a confidential communication or incriminate the client, then it may be protected. Furthermore, the attorney-client privilege does not protect disclosure of the underlying facts. A client cannot be compelled to answer the question "What did you say to your attorney?" but cannot refuse to reveal a fact within her knowledge merely because she told that fact to her attorney. Upjohn Co. v. United States, 449 U.S. 383 (1981) (quoting Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (E.D. Pa. 1962)). Finally, communications are not privileged when they are made to an attorney who is acting in a capacity other than as an attorney, such as a tax preparer, business partner, or witness to a will.

State of Mind Testimony

A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. A statement of a memory or past belief is inadmissible hearsay when used to prove the fact remembered or believed, unless the statement relates to the validity or terms of the declarant's will.

Hearsay Exception - Statement of Mental, Emotional, or Physical Condition

A statement of the declarant's then-existing state of mind or emotional, sensory, or physical condition is not excluded as hearsay. Fed. R. Evid. 803(3).

Hearsay Exception - Dying Declaration

A statement qualifies as a "dying declaration" if: i) The declarant believes that her death is imminent; and ii) The statement pertains to the cause or circumstances of the death she believes to be imminent. Under this exception to the hearsay rule, although the declarant must be unavailable, the declarant need not have actually died in order for the statement to avoid exclusion as hearsay. The dying-declaration exception applies only in homicide prosecutions and civil cases. Fed. R. Evid. 804(b)(2).

Free Speech and Vagueness

A statute is "void for vagueness" if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited. United States v. Williams, supra. As with overbreadth, vagueness is impermissible for fear that constitutionally protected speech will be "chilled." In addition, the "void for vagueness" doctrine is grounded in the due process requirement of notice. Under due process principles, laws that regulate persons or entities must give fair notice of conduct that is forbidden or required. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012), Statutes that tie criminal culpability to conduct that involves subjective judgments without providing statutory definitions, narrow context, or settled legal meanings have been struck down for vagueness. Reno v. ACLU, 521 U.S. 844 (1997) (indecent speech); Coates v. Cincinnati, 402 U.S. 611 (1971) (annoying conduct).

Strict liability crimes

A strict-liability crime does not require a mens rea, rather, proof of the actus reus is sufficient for a conviction. Examples of strict-liability crimes include statutory rape; bigamy; regulatory offenses for public welfare; regulation of food, drugs, and firearms; and selling liquor to minors.

Bigamy

A strict-liability offense (with respect to marital status), bigamy is the act of marrying someone while still legally married to someone else. Common law considered a defendant guilty even when the defendant incorrectly believed that an alleged divorce was valid or that his spouse was dead.

Subpartnership

A subpartnership, which is not a true partnership, refers to an agreement between a partner and a third party that the third party will share in the partner's profits from the partnership. The third party does not become a member of the partnership and has only a contractual claim against that partner for a share of the partnership's profits.

Distribution and support trust

A support trust directs the trustee to pay income or principal as necessary to support the trust beneficiary. Creditors cannot reach the assets of a support trust, except to the extent that a provider of a necessity to the beneficiary can be paid directly by the trustee. The Internal Revenue Code set an "ascertainable standard" limiting distributions to amounts needed for a beneficiary's "health, education, support, and maintenance." I.R.C. §2041(b).

Physical Occupation taking

A taking has occurred when the governmental regulation results in a permanent physical occupation of the property. This is a per se taking.

Taxing Power

A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production.

Seizure and Stop and Frisk

A temporary detention for the purpose of a criminal investigation is a "stop," not an arrest, but is still a seizure for Fourth Amendment purposes. The test for a stop is whether the officer, by means of physical force or show of authority (to which the subject has submitted), has in some way restrained the liberty of the citizen. Seizure includes physical restraint or an order to stop so that the officer can frisk and ask questions on the street.

Tender offer

A tender offer is an offer to shareholders of a publicly traded corporation to purchase their stock for a fixed price, which is usually higher than the market price. It is frequently used to effect a hostile takeover of a corporation (i.e., a takeover that is opposed by the current management of the corporation).

Revocation by subsequent instrument

A testator can expressly revoke a will by a subsequent writing, a later will, or a codicil. Under the UPC, a subsequent writing expressing the intent to revoke must qualify as a valid holographic or attested will. Unif. Probate Code § 2-507(a)(1). The revocation can be express or can be implied by the terms of the subsequent instrument. An oral revocation of a will is not valid.

Alteration of Will

A testator cannot increase a gift to a beneficiary by canceling words in his will, but he may be able to decrease the gift as long as the alteration is made to the existing language of the will rather than through the addition of new language.

Demonstrative devise

A testator intends that a demonstrative legacy be paid from a particular source, but if that source is insufficient, then he directs that the legacy be satisfied out of the general assets of the estate.

Revocation of Will - Time

A testator with testamentary capacity retains the ability to revoke his will at any time prior to his death, even if he has executed a valid contract not to revoke the will. In such a case, the revoked will must be denied probate, but the interested parties may bring an action for breach of contract against the estate of the decedent.

Liability of Third Parties to trust

A third party can potentially be held liable for his role in a breach of trust. Common law presumed that the purpose of a trust was to preserve the trust property, requiring those dealing with trustees to carefully inspect the trust property before dealing with the trustee. The modern trend presumes that the purpose of a trust is to hold and manage the trust property, and it provides greater protection to third parties.

Third Party Will Revocation

A third party can revoke on behalf of the testator as long as the revocation is: i) At the testator's direction; and ii) In the testator's conscious presence. If a testator calls his attorney requesting that she tear up his will, then the revocation is not valid because it was not done in the testator's conscious presence. An attorney can be subject to liability for failing to advise her client regarding the proper revocation or execution of his will.

Criminal Defense - Duress

A third party's unlawful threat that causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so, allows the defendant to claim the duress defense. Duress is not a defense to intentional murder. A defendant charged with felony murder may claim duress as a defense to the underlying felony and avoid conviction for felony murder.

Tippees

A tippee is a person who is given information by an insider or a constructive insider (the "tipper") with the expectation that the information will be used to trade the stock or other securities. The tipper must receive a personal benefit from the disclosure or intend to make a gift to the tippee. To be liable, the tippee must have known (or should have known) that the information was provided to him in violation of the insider's duty to the corporation. Dirks v. SEC, 463 U.S. 646 (1983).

Fundamental change asset transfers

A transfer involving all, or substantially all, of the corporation's assets outside the usual and regular course of business is a fundamental corporate change for the transferor corporation. Thus, the corporation must follow the fundamental change procedures. The approval procedure for an asset transfer follows the approval procedure for a merger, except that only the transferor corporation's board of directors and shareholders are entitled to vote on the transaction. RMBCA §12.02.

Disqualificiation of counsel despite waiver

A trial court has the authority to disqualify a defense attorney, even over the objection of the defendant, if the court concludes that there is serious potential of a conflict of interest. Wheat v. United States, 486 U.S. 153, 158-159 (1988).

Trust Modification

A trust automatically terminates only when the trust purpose has been accomplished. Subject to the Claflin doctrine, discussed below, a trust may terminate by consent if the settlor is deceased or has no remaining interest in the trust, and if all of the beneficiaries and the trustee consent to the termination. The trustee by herself cannot terminate a trust. If all of the beneficiaries wish to terminate, but the trustee objects, most courts allow the trustee to block the termination if she can show termination would violate the settlor's intent.

Trust termination

A trust automatically terminates only when the trust purpose has been accomplished. Subject to the Claflin doctrine, discussed below, a trust may terminate by consent if the settlor is deceased or has no remaining interest in the trust, and if all of the beneficiaries and the trustee consent to the termination. The trustee by herself cannot terminate a trust. If all of the beneficiaries wish to terminate, but the trustee objects, then most courts allow the trustee to block the termination if she can show that termination would violate the settlor's intent.

Valid trust purpose

A trust can be created for any purpose, as long as it is not illegal, restricted by rule of law or statute, or contrary to public policy. Trust provisions that restrain a first marriage have generally been held to violate public policy. However, a restraint on marriage might be upheld if the trustee's motive was merely to provide support for a beneficiary while the beneficiary is single. See Restatement (Third) of Trusts § 29 (2003). Situations in which one of several trust terms is violative of public policy, any alternative terms provided by the settlor will be honored, and, if there are none, the term will be stricken from the trust, but the trust will not fail altogether unless the removal of the term proves fatal.

Bifurcated Transfer

A trust involves a bifurcated transfer. The creator or settlor transfers property to a second-party trustee to be managed for the benefit of a third-party beneficiary. The trustee holds legal title, and the beneficiary holds equitable title. No consideration is required.

Trusts generally

A trust is a fiduciary relationship wherein one or more trustees are called upon to manage, protect, and invest certain property and any income generated therefrom for the benefit of one or more named beneficiaries. To create a trust, the grantor must have intended to create the trust. A trust is valid as long as it has a trustee, an ascertainable beneficiary, and assets. Trust interests are alienable, devisable, and descendible unless the terms of a trust expressly or impliedly provide otherwise. Trusts are classified according to the method by which they are created. There are three main types of trusts: express trusts, resulting trusts, and constructive trusts.

Class gift exception for trusts

A trust to a reasonably definite class will be enforced. Even a trust that allows the trustee to select the beneficiaries from among the members of a class is acceptable, but a trust to an entirely indefinite class will not be enforced as a private trust.

Trustee duty to oversee decisions

A trustee can delegate the determination of management and investment strategies, and other duties as would be prudent under the circumstances, but must oversee the decision-making process. Otherwise, the trustee is responsible for actual losses, regardless of cause.

Trustee duty to be impartial

A trustee has a duty to balance the often-conflicting interests of the present and future beneficiaries by investing the property so that it produces a reasonable income while preserving the principal for the remaindermen.

Trustee's Power to terminate

A trustee has no power to terminate a trust unless the trust instrument contains express termination provisions.

Trustee Duty of Loyalty and Good Faith

A trustee is bound by a broad range of fiduciary duties designed to ensure that she acts solely in the best interests of the beneficiaries when investing property and otherwise managing the trust. The trustee has a duty to administer the trust in good faith, in accordance with its terms and purposes, and in the interest of the beneficiaries. Any beneficiary has standing against the trustee if his interests are violated, and he can choose either to set aside the transaction or to ratify the transaction and recover any profits therefrom. Even if a trustee is granted complete discretion under the trust instrument, her actions are not immune from review if it can be shown that she failed to exercise good judgment. When the trustee's decision is based exclusively on personal reasons unrelated to the settlor's goals, the trustee's decision may be overturned.

Trustee duty to perform

A trustee must be given specific duties to perform, or the trust will fail and legal and equitable title will merge in the beneficiary. The expressed intention of the settlor to create a trust along with the identification of trust property and beneficiaries is usually sufficient for the court to infer duties to be performed by the trustee.

Trustee duty to disclose

A trustee must disclose to the beneficiaries complete and accurate information about the nature and extent of the trust property, including allowing access to trust records and accounts. The trustee must also identify possible breaches of trust and promptly disclose such information to the beneficiaries. The UTC requires the trustee to promptly provide a copy of the trust instrument upon request, unless otherwise provided by the settlor in the instrument. Unless disclosure would be severely detrimental to the beneficiaries, the trustee must notify the beneficiaries if he intends to sell a significant portion of the trust assets.

Trustee Duty to Account

A trustee must periodically account for actions taken on behalf of the trust so that his performance can be assessed against the terms of the trust. Trustees of testamentary trusts must account to the probate court. The UTC allows the settlor to waive the trustee's duty to report to the beneficiaries, or the beneficiaries can waive the receipt of reports. Waiver of the duty to report does not relieve a trustee from liability for misconduct that would have been disclosed by a report.

Use tax

A use tax on goods purchased out of state but used within the taxing state is valid so long as the use tax rate is not higher than the sales tax rate on the same item. Even though a use tax does, on its face, seem to discriminate against out-of-state purchases, the rationale for its validity is that such a tax equalizes the tax on in-state and out-of-state goods. Henneford v. Silas Mason Co., Inc., 300 U.S. 577 (1937).

Trust property

A valid trust must contain some property that was owned by the settlor at the time the trust was created and was at that time transferred to the trust or to the trustee. Put differently, the trust must be "funded." Any property interest, including real property, personal property, money, intangibles, partial interests, or future interests (whether vested or contingent) will suffice, although a mere expectancy will not. If a trust that is invalid for lack of assets is later funded, a trust arises if the settlor re-manifests the intention to create the trust. The exception is a "pour-over" gift (see § II.A.2.a.4). infra), which is valid even if made before there is identifiable trust property.

Trust Vested Remainder Acceleration Into Possession

A vested remainder accelerates into possession as soon as the preceding estate ends for any reason, such as the disclaiming of the estate by its holder(s), whereas a contingent remainder does not vest until all conditions precedent have been satisfied. If the income beneficiary of a trust disclaims her interest, then the trust principal becomes immediately distributable to the presumptive remainder beneficiaries of the trust, provided no one would be harmed by making a distribution to them earlier than it would have been made had the income beneficiary not disclaimed.

Arrest Warrants and Entry

A warrant to arrest an individual implicitly authorizes entry into the arrestee's home to serve the warrant if the police have reason to believe that the arrestee is present. A police officer may not arrest a person in another person's home without an arrest warrant for the subject and a search warrant for the third party's home, absent exigent circumstances or valid consent to enter the third party's home. Steagald v. United States, 451 U.S. 204 (1981).

Misdemeanor Arrest

A warrantless arrest of a person for a misdemeanor punishable only by a fine is not an unreasonable seizure under the Fourth Amendment. Atwater v. Lago Vista, 532 U.S. 318 (2001). Note that the misdemeanor must have been committed in the presence of the arresting party; probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid warrantless arrest.

Warrant exception - search incident to a lawful arrest

A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. If the arrest is invalid, any search made incident to it is likewise invalid. Therefore, if a suspect is stopped for a traffic offense and given a citation but not arrested, then there can be no search incident to lawful arrest. Knowles v. Iowa, 525 U.S. 113 (1999).

Incorporation by Reference in a Will

A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing: i) Existed at the time the will was executed; ii) Is intended to be incorporated; and iii) Is described in the will with sufficient certainty so as to permit its identification. Unif. Probate Code § 2-510. The UPC waives the requirement that the document have been in existence at the time the will was executed if the document disposes only of the testator's tangible personal property. The will, however, must expressly state the testator's intent. Unif. Probate Code § 2-513.

Acts of Independent Significance in a will

A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator's death, if the act or event has some significance apart from the will. Unif. Probate Code § 2-512 ("Events of Independent Significance"). The act may be in relation to the identification of property or of beneficiaries. If the testator, the beneficiary, or some third person has some control over the act or event, it may still have independent legal significance if it is unlikely that the testator or other person would perform such act solely for testamentary reasons. The execution or revocation of a will of a third person is an act of independent significance.

Will Substitutes

A will substitute is a method of transferring a decedent's property outside of probate. Distribution of these nonprobate assets does not involve a court proceeding; it is done in accordance with the terms of a contract, trust, or deed. Will substitutes come in many forms, the most popular of which are described in this section.

Self-Incrimination and Immunity

A witness may be compelled to provide incriminating testimony if the government grants him immunity from prosecution. The witness is not entitled to "transactional" immunity, i.e., protection against prosecution for the entire transaction about which he was testifying; instead, the government is constitutionally required to offer mere "use" immunity, which prohibits only the use of the compelled testimony against the witness. Kastigar v. United States, 406 U.S. 441 (1972). If the government does prosecute the witness in such a case, the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution. A witness may lose the right to invoke the privilege if the danger of incrimination has been removed through acquittal or conviction of the underlying charge. If the questioning about the adjudicated crime can lead to prosecution for other crimes, however, the privilege can be invoked.

Exclusionary Rule and in-court identification

A witness's in-court identification of the defendant is not fruit of an unlawful detention. Thus, the identification cannot be excluded. On the other hand, live testimony may be excluded as fruit of illegal police conduct if there is a sufficient link between the illegal police conduct and the testimony.

Rape - fraud

Fraud rarely negates consent. Consent obtained by fraud regarding the nature of the act itself—fraud in factum (e.g., the defendant convinces the victim that the act is not intercourse but part of a medical exam)—is not a valid defense. Consent obtained by fraud in the inducement (e.g., a promise of marriage in exchange for sex) is a valid defense.

Witness's FIfth AMendment privilege

A witness, on the other hand, may be compelled to take the stand and can invoke the privilege only in response to a specific question when there is some reasonable possibility that answering the question will incriminate the witness. However, such an invocation after testimony has already been made may violate a defendant's right to confrontation, guaranteed by the Sixth and Fourteenth Amendments, if it prevents adequate cross-examination. Douglas v. Alabama, 380 U.S. 415 (1965).

Payment to dissociated partner for interest

Absent an agreement to the contrary, within 120 days of the dissociated partner's demand for payment, the partnership generally is required to pay the partner the partnership's estimate of the partner's interest, less any offsets. RUPA 701(d), (h).

Trust method of revocation

Absent language within the instrument prescribing the method of revocation, any action manifesting the settlor's intent to revoke will suffice. The revocation becomes effective when the action manifesting the intent occurs, rather than when the trustee or beneficiaries learn of the action.

Homicide Substantial Factor

Actual causation can be found when there are multiple causes, (i.e., other persons are also responsible for the victim's death) and the defendant's act was a substantial factor in causing the death. Simultaneous acts by different individuals who are acting independently may each be considered the actual cause of a victim's death, even though the victim would have died in the absence of one of the acts.

Rape - sexual intercourse

Actual penetration, however slight, is required; emission is not.

Domicile by Choice - physical presence

Actual physical presence in the location is required to establish the location as the person's domicile. The person, though, need not be present for any specific amount of time to establish domicile, so long as the amount of time is coupled with the intent to establish domicile.

Additional events causing a general partner to cease being a partner in a LP

Additional events include: i) Assignment of her partnership interest, unless the partnership agreement provides otherwise (RULPA 702); ii) Removal as a general partner in accordance with the partnership agreement; iii) Financial difficulties, such as bankruptcy and insolvency; iv) Death or adjudicated incompetency of a natural person; or v) Termination of a partner as a business entity. RULPA 402.

Administrative searches

Administrative search warrants are generally required for nonconsensual fire, health, or safety inspections of residential or private commercial property.

Confession of a non-testifying co-defendant - harmless error

Admission of a co-defendant's statement in violation of Bruton, however, is subject to harmless-error analysis. Schneble v. Florida, 405 U.S. 427, 430 (1972).

Voluntariness of incriminating statements during trial

Admissions of incriminating statements made during a court-ordered psychiatric examination are generally deemed involuntary and not admissible at trial unless the defendant is given Miranda warnings before the interview and waives his rights. Business papers voluntarily prepared by an individual, or required records, such as tax returns, are not protected.

Adultery and fornication

Adultery and fornication are considered misdemeanor offenses in some states. Adultery involves sexual intercourse or cohabitation with a person who is not a spouse. Fornication is open and notorious cohabitation or sexual intercourse between unmarried persons.

Adverse impact and ineffective assistance of counsel

Adverse impact can be established by demonstrating that some plausible alternative defense strategy or tactic might have been pursued and such strategy or tactic was inherently in conflict with, or not undertaken, due to the attorney's other loyalties or interests. The conflicting character of the strategy is not sufficient if the strategy actually was rejected because another strategy was viewed as even more favorable to the accused.

Vested-Rights Approach - Determination of the choice-of-law rule to be applied

After characterizing the issue in the cause of action, the forum court will then determine what the forum state's choice-of-law rules require with regard to the characterized issue. For example, if the issue has been characterized as a tort, then the law of the forum state may require that the law of the place of the injury apply.

Statement of dissolution

After dissolution, a partner who has not wrongfully dissociated may file a statement of dissolution. A statement of dissolution, which constitutes a limitation on a partner's authority, is treated as giving third parties notice of the dissolution 90 days after the statement is filed. RUPA 805.

Consequences of partner's post-dissolution acts for the partnership

After dissolution, the partnership is bound by a partner's act that is appropriate for winding up the partnership as well as any act undertaken by a partner that would have bound the partnership before dissolution, if the other party does not have notice of the dissolution. RUPA 804. Each partner is liable to the other partners for his share of partnership liability incurred by such post-dissolution acts. In addition, a partner who knowingly undertakes an act inappropriate for winding up the partnership business is liable to the partnership for any damage caused to the partnership for such an act. RUPA 806.

Grand Jury Indictment

After hearing the prosecution's evidence, the grand jury decides whether there is probable cause to charge a particular defendant with a particular crime and, if so, returns a "true bill" of indictment. (This formal charging process is mandated by the Fifth Amendment under the federal system for felonies and is used in most eastern states, but a state is not constitutionally required to use this process, as the Fifth Amendment Grand Jury Clause has not been incorporated by the Fourteenth Amendment. In most western states, the charging process is initiated by filing an information by a prosecutor.)

Administration of Probate

After the court issues its "letters testamentary" or "letters of administration," the personal representative is authorized to begin performing his duties on behalf of the estate. Bona fide purchasers from personal representatives or heirs are protected after the granting of letters of administration, even if the will presented at the time the letters were granted is subsequently invalidated.

Beneficiary disclaimer of trust vested remainder

Almost all states have enacted statutes that permit beneficiaries of trusts to disclaim their interest in the trust property. In most states, a disclaimer is not effective unless it is reduced to writing within nine months after the future interest would become "indefeasibly vested." For a revocable trust or a testamentary trust, the future interest in a named beneficiary becomes "indefeasibly vested" when the settlor dies. When the holder of a future interest effectively disclaims that interest, the disclaimant is deemed to have predeceased the life tenant. Under the laws of some states, if a life tenant disclaims a gift, the disclaimer is effective as long as it is executed within nine months of the indefeasible vesting of the interest. Under federal tax laws, the disclaimer must be executed within nine months of the creation of the interest in question to avoid estate or gift taxes.

LLC Piercing the veil

Although LLC members are not liable for LLC obligations, most states recognize the possibility of piercing the veil of limited liability of an LLC in certain circumstances. Although state courts have recognized piercing the veil in the LLC context, there must exist some circumstances that would justify piercing the veil on equitable grounds, such as undercapitalization of the business, commingling of assets, confusion of business affairs, or deception of creditors. Although less relevant in the LLC context, some courts will cite a failure to follow formalities in the LLC context as part of the rationale for piercing the LLC veil as well. See Bonner v. Brunson, 585 S.E.2d 917 (Ga. Ct. App. 2003). Courts that pierce the veil rely on various theories to do so, including the "mere instrumentality" and "unity of interest and ownership" theories. See Litchfield Asset Mgmt. Corp. v. Howell, 799 A.2d 298 (Conn. App. Ct. 2002).

Power of partnership agreement

Although a formal agreement is not required to create a partnership, if the partners have entered into such an agreement, then the agreement, rather than RUPA, generally governs the relations among the partners and between the partners and the partnership when there is a conflict between the agreement and RUPA.

Promoter right to reimbursement

Although a promoter can seek compensation for pre-incorporation activities undertaken on the corporation's behalf and reimbursement for related expenses, the promoter cannot compel the corporation to make such payments, because the promoter's acts, although done to benefit the corporation, are not undertaken at the corporation's direction.

Scope of consent to search

Although a search is limited to the area to which the consent applies, the search may extend to areas that a reasonable officer would believe it extends. For example, consent by a driver to search his car for drugs extends to a closed container within the car that could contain drugs. Florida v. Jimento, 500 U.S. 248, 252 (1991).

Co-Conspirators Vicarious Statements

Although a statement made by one co-party is not admissible against another co-party based solely on their status as co-parties, a statement made by a co-conspirator during and in furtherance of the conspiracy is admissible as an opposing party's statement against other co-conspirators. Fed. R. Evid. 801(d)(2)(E). A statement made by a co-conspirator after being arrested generally is not admissible, since it was not made during the conspiracy.

Written vs. oral partnership agreement

Although a written agreement is not necessary to form a partnership, a partnership agreement is subject to the Statute of Frauds, which requires contracts that cannot be performed in one year to be in writing.

Shareholder Approval Requirements

Although approval of the shares entitled to vote on an issue is the generally accepted standard, when there are classes of shares, each class of stock may be required to approve the issue separately. RMBCA § 7.26.

Criminal battery - consent defense

Although consent is generally not a defense to a crime, consent may be a defense to a battery. Consent may be explicit (e.g., a signed authorization for surgery) or implicit (e.g., participation in an athletic event).

LLC Fiduciary Waiver

Although courts generally frown upon corporate agreements that attempt to waive the duty of loyalty in self-dealing transactions, because LLCs are seen as more contractual in nature than corporations, fiduciary waivers are recognized in LLCs. Many LLC statutes even allow members to agree to specific types or categories of activities that do not violate the duty of loyalty, as long as the agreement is not manifestly unreasonable. ULLCA §1103(b)(2).

Accountant-Client privilege

Although not available at common law, many jurisdictions recognize a privilege for confidential communications made by a client to his accountant. The privilege operates similarly to the attorney-client privilege.

Compelled financial support

Although one can be compelled to join or financially support a group with respect to one's employment, one cannot be forced to fund political speech by that group. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (teacher required to pay union dues); Keller v. State Bar of California, 496 U.S. 1 (1990) (lawyer required to join a bar association). A student, however, can be required to pay a university activity fee even though the fee may support groups that espouse messages with which the student disagrees, at least when the fee is allocated in accord with a viewpoint-neutral scheme. Board of Regents v. Southworth, 529 U.S. 217 (2000).

Death penalty and adequate medical care

Although prison inmates have a right to adequate medical care, such care constitutes "cruel and unusual punishment" under the Eighth Amendment only when there is a deliberate indifference to the serious medical needs of an inmate. Mere negligence in assessing an inmate's medical condition or in providing treatment is not sufficient to trigger a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 104-105 (1976).

Advance Healthcare Directives - Execution Requirements

An advance healthcare directive must be in writing, signed by the individual who is to receive the care, and either witnessed by at least two individuals or notarized. In many states, the agent or the healthcare provider cannot be a witness; in some states, a spouse, heir, or beneficiary of the individual cannot be a witness. Some states require the use of a specific form or a substantially similar form. Under the Uniform Health-Care Decisions Act (UHCDA), which has been adopted by seven states, instructions regarding future healthcare can be oral as well as written, but the appointment of a healthcare agent must be in a signed writing. UHCDA § 2.

Controlling shareholder fiduciary duties

Although shareholders do not owe fiduciary duties to the corporation or to each other, a fiduciary duty to the minority shareholders may arise if the controlling shareholder is (i) selling that interest to an outsider, (ii) seeking to eliminate other shareholders from the corporation, or (iii) receiving a distribution denied to the other shareholders. A controlling shareholder has a duty to disclose to the minority shareholder any information that it knew or should have known if it is information that a reasonable person would consider important in deciding how to vote on a transaction. A controlling shareholder breaches her fiduciary duty to the minority shareholders if nondisclosure causes a loss to the minority shareholders. A loss includes being deprived of a state remedy that would otherwise have been available. Furthermore, when a majority shareholder purchases the interest of the minority, it has a fiduciary duty of fair dealing. The controlling shareholder bears the burden of demonstrating that the process she employed was fair and that the price she selected was fair. Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983).

Equal Protection Intermediate Scrutiny burden of proof

Although the Court has not clearly stated the rule, the burden appears generally to be on the government to prove that the law in question passes intermediate scrutiny. As with strict scrutiny (and unlike rational basis review), the government must defend the interest(s) it stated when the law was enacted, not just some conceivable legitimate interest.

Commander in Chief

Although the President is the commander in chief of the military, only Congress may formally declare war. The President may take military action without a declaration of war in the case of actual hostilities against the United States. Congress may in turn limit the President's military activities through exercise of its military appropriation (i.e., funding) power. The questions of whether and to what extent the President may deploy troops overseas without congressional approval is unsettled; presidents routinely do so, and Congress routinely asserts its authority to approve the deployment. The courts have generally left the question to the political branches.

Association and Bar Membership

Although the state can inquire into the character of a candidate for bar admission, such admission cannot be denied on the basis of political association unless the candidate knowingly belongs to a subversive organization with specific intent to further its illegal ends. Schware v. Board of Bar Exam'rs, 353 U.S. 232 (1957). The state may, however, deny bar membership to a candidate who refuses to answer questions about political affiliations if that refusal obstructs the investigation of the candidate's qualifications. Konigsberg v. State Bar of California, 366 U.S. 36 (1961).

Due Process - international travel

Although there is a right to travel internationally, it is not a fundamental right invoking strict scrutiny. Hence, the U.S. government may limit travel to certain countries as long as it has a rational basis for doing so. Regan v. Wald, 468 U.S. 222 (1984).

Physician-Patient Privilege

Although there is no common-law privilege covering statements made by a patient to a physician, most states protect such communications by statute, so long as the communications were made for the purpose of obtaining medical treatment. The patient holds the privilege; thus, only the patient may decide whether to waive it. The privilege does not exist if: i) The information was acquired for reasons other than treatment; ii) The patient's physical condition is at issue; iii) The communication was made as part of the commission of a crime or tort; iv) A dispute exists between the physician and the patient; v) The patient contractually agreed to waive the privilege; or vi) A case is brought in federal court and state law does not apply (e.g., most cases that involve a federal question). If an attorney requests that a physician consult with his client, then the physician-patient privilege applies only if treatment is contemplated during the consult.

Equal Protection and federal action

Although there is no federal equal protection clause, the Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states. Bolling v. Sharpe, 347 U.S. 497 (1954).

Due process - compelling interest

Although there is no precise definition of what is "compelling," it is generally understood to be something that is necessary or crucial, such as national security or preserving public health or safety.

Void Gifts

Although there may appear to be no difference between a void gift and a lapsed gift, the law sometimes makes a distinction and treats them differently. A gift is void if, unbeknownst to the testator, the beneficiary is already deceased at the time the will is executed. As noted above, a lapsed gift occurs when the beneficiary predeceases the testator after the will has been executed. Most states allow anti-lapse statutes to apply to void gifts.

Search of automobiles

Although, under the Fourth Amendment, stopping a car constitutes a seizure of the driver and any passengers, Brendlin v. California, 551 U.S. 249 (2007) (passenger), Delaware v. Prouse, 440 U.S. 648 (1979) (driver), there is a lesser expectation of privacy with regard to the automobile and its contents than with a home. Wyoming v. Houghton, 526 U.S. 295 (1999). Even so, officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile. A call to 911 reporting erratic driving may give the police the reasonable suspicion needed to make a traffic stop if the report is reliable. Navarette v. California, 572 U.S. ___, 134 S. Ct. 1683 (2014).

Joint bank accounts and probate

Amounts on deposit in a bank account may be transferred at death by means of a joint or multiple-party account designation. The surviving tenant or tenants have an absolute right to the account proceeds, unless extrinsic evidence is introduced that the decedent added the tenant or tenants for convenience purposes only. For example, creating a joint account in order to give the cotenant check-writing privileges, such as can be case with the child of elderly owner of an account is considered a convenience. In such case, the cotenant is treated as agent of the original owner of the account. In that case, some courts, including those following the UPC, set aside the joint tenancy in the bank accounts. Unif. Probate Code § 6-212 cmt. Other courts still affirm the joint tenancy, relying on the parol-evidence rule to exclude evidence of the depositor's intentions. Still other courts have created a presumption that cotenants who have a present right to demand payment from a joint or multiple-party account, whether the account is in the form of a joint and survivor account or an agency account, own the account in proportion to their contributions to the account.

LLC Management

An LLC can be member-managed (direct management of the LLC by its members) or manager-managed (centralized management of the LLC by one or more managers who need not be members). Unless the operating agreement or certificate of incorporation provide otherwise, the default management arrangement is a member-management. Nonetheless, a manager-managed LLC that does not designate a manager is still manager-managed with the manager position vacant. ULLCA § 407(c).

LLC Articles of Organization

An LLC is created by filing articles (certificate) of organization with the state, which merely reflects the existence of an LLC. Note that this document is different from articles of incorporation, a document that has a substantially greater power to affect the rules for the corporate entity and its owners. The articles of organization must include the LLC's name, mailing address, and, if there are no members upon filing, a statement to that effect.

LLC Operating agreement

An LLC may adopt an operating agreement that governs any or all aspects of its business. The operating agreement generally takes precedence over contrary statutory provisions, and statutory default provisions apply when the operating agreement is silent on an issue. An operating agreement is considered a contract that is governed by contract principles of law. The agreement can be oral, in a record, or implied by conduct, or any combination thereof, which is why the ULLCA refers to the agreement as a "record" rather than a writing.

Formation of LLP

An LLP is formed by filing a statement of qualification with the state. LLP status is effective on the date that the statement is filed, unless a later date is specified in the statement. RUPA 1001(c), (e). The filing of a statement of qualification to transform a partnership into an LLP does not create a new partnership. RUPA 201(b).

Accessory After the Fact

An accessory after the fact is a person who aids or assists a felon in avoiding apprehension or conviction after commission of the felony. An accessory after the fact must know that a felony was committed, act specifically to aid or assist the felon, and give the aid or assistance for the purpose of helping the felon avoid apprehension or conviction. An accessory after the fact is not subject to punishment for the crime committed by the felon, but instead has committed a separate crime, frequently labeled "obstruction of justice" or "harboring a fugitive."

Accomplice's criminal liability

An accomplice is responsible for the crime to the same extent as the principal. If the principal commits crimes other than the crimes for which the accomplice has provided encouragement or assistance, then the accomplice is liable for the other crimes if the crimes are the natural and probable consequences of the accomplice's conduct. An accomplice may be criminally liable even though she cannot be a principal.

Article III - Damages to be paid by an individual

An action for damages against a state officer is not prohibited, as long as the officer himself (rather than the state treasury) will have to pay. Such is the case when an officer acts outside the law; the action is against the officer as an individual and not in his representative capacity.

Ad valorem property tax

An ad valorem tax is based on the value of real or personal property and is often assessed at a particular time (e.g., tax day). Such taxes, which may be imposed on the full value of the property, are generally valid, but a state may not levy ad valorem taxes on goods in the course of transit (from the time the goods are delivered to an interstate carrier or begin their interstate journey until they reach their destination). Standard Oil Co. v. Peck, 342 U.S. 382 (1952). However, once the goods are stopped for a business purpose (i.e., obtain a "taxable situs"), they may be taxed. A state may tax the "instrumentalities of commerce" (airplanes, railroad cars, etc.), provided that: i) The instrumentality has a taxable situs within—or sufficient contacts with—the taxing state (i.e., it receives benefits or protection from the state); and ii) The tax is fairly apportioned to the amount of time the instrumentality is in the state.

Adoptive Admission

An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Fed. R. Evid. 801(d)(2)(B). Silence in response to a statement is considered an adoptive admission if: i) The person was present and heard and understood the statement; ii) The person had the ability and opportunity to deny the statement; and iii) A reasonable person similarly situated would have denied the statement. Post-arrest silence by a defendant who has received Miranda warnings may not be used as an adoptive admission of a statement made by another person (e.g., a police officer). Doyle v. Ohio, 426 U.S. 610 (1976).

Advance Healthcare Directives

An advance healthcare directive may encompass a living will, a durable power of attorney for healthcare, or both. A living will dictates to a medical provider the healthcare that an individual wants in the event that the individual is unable to make those wants known. A healthcare power of attorney appoints an agent to make healthcare decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions. Unlike other powers of attorney, a healthcare power of attorney becomes effective upon incapacitation of the principal.

Criminal Defense - Alibi

An alibi is a defense whereby a defendant denies his participation in a crime because he asserts that he was elsewhere when the alleged crime was committed. An alibi is not an affirmative defense; the defendant is not required to prove that he was elsewhere when the crime was committed. Instead, the burden remains on the prosecution to prove that the defendant was the person who committed the crime.

Civil proceedings exception to presidential privilege

An executive branch decision to withhold production of information in civil proceedings will be given greater deference than in a criminal trial because the need for information is "weightier" in the latter case. In a civil case, the court may be required to consider the issue of separation of powers without first requiring the executive branch to assert executive privilege. Cheney v. United States Dist. Court, supra.

Express trusts

An express trust is created as a result of the expressed intention of the owner of the property to create a trust relationship with respect to the property. There are two categories of express trusts: private express trusts and charitable trusts.

Honorary Trusts

An honorary trust is one that is not created for charitable purposes but has no private beneficiaries. The most common example is a trust for the care of a beloved pet. In the case of an honorary trust, the trustee is on her honor to administer the trust because there are no beneficiaries capable of enforcing its terms. Should the trustee fail to do so, a resulting trust may be imposed for the benefit of the settlor's estate. A common problem that arises in the context of an honorary trust is the attempted application of the Rule Against Perpetuities. Such application is sometimes circumvented by using the trustee's life as the life in being, or by assuming that the trust will be exhausted before the perpetuities period has run.

Due Process liberty

An impingement on liberty is generally construed to mean significant governmental restraint on one's physical freedom, exercise of fundamental rights (i.e., those guaranteed by the Constitution), or freedom of choice or action. Examples of loss of liberty include commitment to a mental institution, parole revocation, and loss of parental rights. Injury to reputation alone is not a deprivation of liberty, unless the injury is so great that the individual has lost significant employment or associational rights.

Incorporator liability

An incorporator is a person who signs and files the articles of incorporation with the state. By performing such acts, an incorporator does not engender liability for a contract entered into by a promoter of the corporation.

Due Process - Public office and public support requirements

An independent candidate for elected public office can be required to obtain the signatures of voters on a petition in order to appear on the ballot, but such a requirement cannot deny independent candidates ballot access. Jenness v. Fortson, 403 U.S. 431 (1971) (state requirement that an independent candidate obtain five percent of the number of registered voters at the last general election for the office in question upheld). State election laws imposing undue burdens on placing new or small parties on the state ballots must serve a compelling state interest in the regulation of a subject within the state's constitutional power. Williams v. Rhodes, 393 U.S. 23 (1968) (state election scheme that effectively prohibited independent candidacies in such a way as to exclude virtually all but the two major parties struck down). Unless the requirement imposes such undue burdens on minority groups, a state can deny a candidate access to the general-election ballot if the candidate failed to receive a sufficient number of votes in the primary election. Munro v. Socialist Workers Party, 479 U.S. 189 (1986) (minor party senatorial candidate who failed to receive one percent of the votes cast in primary election not entitled to appear on the general ballot).

Public employee association

An individual generally cannot be denied public employment based simply upon membership in a political organization. Keyishian v. Board of Regents, 385 U.S. 589 (1967).

Fly-over search

An inspection conducted from at least 400 feet in the air, whether by an airplane or a helicopter, does not violate a reasonable expectation of privacy and therefore is not a search for the purposes of the Fourth Amendment. Florida v. Riley, 488 U.S. 445 (1989) (helicopter); California v. Ciraolo, 476 U.S. 207 (1986) (airplane).

Intangible Property and Vested-Rights Approach

An intangible (e.g., a claim, a share of stock, a promissory note) has no physical situs. Under the vested-rights approach of the Restatement (First) of Conflict of Laws, such intangibles are governed by the law of the state in which the intangible was created.

Interstate Compacts

An interstate compact is an agreement, similar to a treaty or a contract, between two or more states. Article I, Section 10, Clause 3 (the "Interstate Compact Clause") allows states to enter into such agreements only with the consent of Congress. However, the only agreements that qualify as "compacts" requiring the consent of Congress are those that either affect a power delegated to the federal government or alter the political balance within the federal system.

Conspiracy under Double Jeopardy

An offense and the conspiracy to commit that offense are not the same offense for double-jeopardy purposes because each requires proof of different elements. United States v. Felix, 503 U.S. 378, 389 (1992).

Corporate officer indemnification

An officer of a corporation is entitled to indemnification on the same basis and subject to the same restrictions as a director. RMBCA §8.56.

Limits on Frisking

An officer who does not have probable cause to arrest may make a limited search of a person he has lawfully stopped, such as a pat-down of the outer clothing, if he has reasonable suspicion that the person was or is involved in criminal activity and that the frisk is necessary for the preservation of his safety or the safety of others (i.e., reasonable suspicion that the person has a weapon). Under the "plain feel" exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband), then the officer may seize the evidence. Police may also briefly seize items if the officers have a reasonable suspicion that the item is or contains contraband.

Authority of corporate officers

An officer's authority can be actual, implied, or apparent. Actual authority wielded by an officer is defined by the corporate bylaws or set by the board of directors. An officer has implied authority to perform those tasks that are necessary to carry out the officer's duties by virtue of her status or position, so long as the matter is within the scope of ordinary business. However, the officer does not have the authority to bind the corporation by extraordinary acts. In determining whether a transaction is extraordinary, the court might consider the economic magnitude of the action in relation to corporate earnings and assets, the extent of the risk involved, the time span of the action's effect, and the cost of reversing the action. Finally, an officer has apparent authority if the corporation holds the officer out as having authority to bind the corporation to third parties.

Organizational standing

An organization may bring an action when it has suffered an injury. In addition, an organization may bring an action on behalf of its members (even if the organization has not suffered an injury itself) if: i) Its members would have standing to sue in their own right; and ii) The interests at stake are germane to the organization's purpose. Hunt v. Washington State Apple Adver. Comm'n., 432 U.S. 333 (1977). When damages are sought, generally neither the claim asserted nor the relief requested can require the participation of individual members in the lawsuit. But note that the damages limitation is not constitutionally mandated and can be waived by Congress. United Food & Commer. Workers Union Local 751 v. Brown Group, 517 U.S. 544 (1996).

Conspiracy - Overt act requirement

An overt act was not required at common law, but it is now a required element of a conspiracy under federal law, the MPC, and in a majority of states. When an overt act is required, the conspiracy crime is not complete until the overt act is performed in furtherance of the conspiracy. The overt act can be performed by any co?conspirator, with or without the knowledge of all co-conspirators. The overt act can be lawful or unlawful.

Challenges to ultra vires acts

An ultra vires act can be challenged in only the following three situations: i) A shareholder can file suit to enjoin the corporation's ultra vires action; ii) The corporation can take action against a director, an officer, or an employee of the corporation who engages in such action; or iii) The state can initiate a proceeding against the corporation to enjoin its ultra vires action. RMBCA §3.04(b). An ultra vires act will be enjoined only if it is equitable to do so.

Unavailable Declarant

An unavailable declarant is a person who: i) Is exempt on the grounds of privilege; ii) Refuses to testify despite a court order to do so; iii) Lacks memory of the subject matter of the statement; iv) Is unable to testify due to death, infirmity, or physical or mental disability; or v) Is absent and cannot be subpoenaed or otherwise made to be present. A declarant is not deemed unavailable if the unavailability is due to the procurement or wrongdoing of the proponent of the statement in order to prevent the declarant from testifying at or attending the trial. Fed. R. Evid. 804(a).

Due process - abortion and prev-viability

An undue burden exists when the purpose or effect of a state law places substantial obstacles in the way of a woman's right to seek an abortion before the fetus attains viability. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). The following requirements have been held not to impose an undue burden: i) A requirement that only a licensed physician may perform an abortion; ii) A requirement that the physician must provide the woman with truthful information about the nature of the abortion procedure, the associated health risks, and the probable gestational age of the fetus; iii) A requirement that a woman must wait 24 hours after giving informed consent before the abortion is performed; iv) A requirement that a minor obtain her parents' consent, or if consent is not required, provide the parents with notice of the abortion. However, this consent requirement has been found to be an undue burden unless, at least for mature minors, the consent requirement can be judicially bypassed. Planned Parenthood Association of Kansas City Missouri Inc. v. Ashcroft, 462 U.S. 476 (1983). v) A ban on a particular uncommon abortion technique, Gonzales v. Carhart, 550 U.S. 124 (2007). The Court found that the State may use its regulatory power to bar certain procedures and substitute others if it has a rational basis to act and it does not impose an undue burden. An undue burden has been found when a state requires a woman to notify her husband before having an abortion, even when the requirement provides exceptions to the rule. Planned Parenthood v. Casey, 505 U.S. 833, 887 (1992) (spousal notification imposed an undue burden, even when the requirement could be bypassed with the woman's signed statement certifying that a statutory exception applied).

Effect of invalid arrest

An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged. If the police have probable cause to detain a suspect, they may do so even if they illegally arrested him (e.g., in his home without a warrant). An unlawful arrest has legal significance, however, when there is a seizure of evidence. Evidence seized pursuant to an unlawful arrest may be suppressed at trial.A voluntary confession made after an unlawful arrest will not automatically be suppressed. Note, however, that the unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly voluntary. If the confession is too closely tied to the illegal arrest, it may be suppressed. See Wong Sun v. U.S., 371 U.S. 471 (1963).

Enhancement of conviction Over the statutory maximum

Any fact, other than a prior conviction, that can be used to increase a sentence beyond the statutorily prescribed maximum must be charged in an indictment, submitted to a jury, and established beyond a reasonable doubt. A fact is considered an element of a crime, as opposed to a sentencing enhancement, when it can increase the maximum sentence imposed. The failure to abide by the above procedure is a violation of the defendant's due-process rights under the Fifth Amendment and Sixth Amendment rights to notice and a jury trial, both of which are incorporated against the states through the Fourteenth Amendment. Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). It is not a Sixth Amendment violation for a judge to impose consecutive sentences based on facts that were not found by the jury, but rather by the judge. Oregon v. Ice, 555 U.S. 160 (2009). The rule of Apprendi v. New Jersey, supra, is thus limited to sentencing for single crimes, not to the arrangement for punishing multiple offenses. However, a sentencing judge, sitting without a jury, may not find the facts necessary to impose the death penalty. Ring v. Arizona, 536 U.S. 584 (2002). Similarly, a state law allowing a jury to issue an "advisory sentence," but allowing the judge alone to ultimately weigh the facts to decide whether to impose the death penalty, is unconstitutional. Hurst v. Florida 135 S. Ct. 1531 (2015). Harmless-error analysis applies in deciding whether or not to overturn a sentence for a judge's failure to submit a sentencing factor to the jury. Washington v. Recuenco, 548 U.S. 212, 222 (2006).

Content-based speech regulation

Any governmental regulation of speech that is content-based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., the strict scrutiny test). Reed v. Town of Gilbert, 576 U.S. ___, 135 S. Ct. 2218 (2015). However, even regulations that are not content-based on their face may still be content-based in application or in intent, and these laws, too, will generally be subject to strict scrutiny. Brown v. Entm't Merchs. Ass'n, 564 U.S 786 (2011) (state law that prohibited the sale of violent video games to minors is an unconstitutional content restriction on speech); Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991). The government must identify an actual problem, and the regulation of speech must be necessary to solve that problem. This standard is incredibly stringent and is not often met. U.S. v. Playboy Entm't Group, Inc., 529 U.S. 803 (2000). However, the government may restrict speech on the basis of content if the speech falls into one of the following historic and traditional categories: obscenity, subversive speech, fighting words, defamation, or commercial speech. U.S. v. Alvarez, 567 U.S. 709 (2012). States are not free to create new categories of content-based restrictions without persuasive evidence that such restrictions have a long-standing history of proscription. Brown v. Entm't Merchs. Ass'n, supra.

Exercising Power of Appointment

Any instrument, unless the donor directs otherwise, may be used to exercise a power of appointment. However, if the power is testamentary, then it may be exercised only by a will. Most jurisdictions hold that a residuary clause alone is insufficient to exercise any power of appointment held by the testator as donee. If there is a blanket power of appointment included within the residuary clause, then the courts will give effect to the power. A phrase such as "including any power of which I may have a power of appointment" would constitute a blanket power of appointment. A blanket exercise clause is effective to exercise powers unless the donor of the power of appointment specifically requires the donee to refer to the instrument creating the power when exercising the power. Most states allow a donee to exercise his power of appointment to create a trust for the benefit of the object of the power rather than transferring the property outright.

Dissolution effect on the partner and the partnership

Any liability incurred by the partnership or by a partner after the dissolution and before the waiver is determined as if dissolution had never occurred. RUPA802(b)(1).

Attempt - Acts

Any of the following acts may constitute a substantial step if they corroborate the defendant's criminal purpose: i) Lying in wait, searching for, or following the intended victim; ii) Unlawful entry into the place contemplated for the commission of the crime; iii) Enticing the intended victim to go to such place; iv) Possession of materials specially designed for committing the crime; v) Possession of materials to be used in the commission of the crime at or near the place of commission; and vi) Soliciting an innocent agent to engage in criminal conduct.

Dissolution of any partnership

Any partnership is dissolved when any of the following events occurs: i) A dissolving event agreed to in the partnership agreement; ii) An event that makes it unlawful for all or substantially all of the partnership business to be continued, provided that the illegality is not cured within 90 days after the partnership receives notice; iii) A judicial determination is sought by a partner that the economic purpose of the partnership is likely to be unreasonably frustrated, another partner has engaged in conduct relating to the partnership business that makes it not reasonably practicable to carry on the business with that partner, or it is not otherwise reasonably practicable to carry on the partnership business in conformity with the partnership agreement; or iv) A judicial determination is sought by a transferee of a partner's partnership interest that it is equitable to wind up the partnership business after expiration of the partnership term or completion of the undertaking or at any time, if the partnership was a partnership at will at the time of the transfer or when the charging order was issued. RUPA 801(3)-(6). A partnership agreement cannot vary the requirements set forth in items ii) through iv) for the dissolution of the partnership.

Impeachment

Article II, Section 4 states: "The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." The House of Representatives determines what constitutes "high crimes and misdemeanors" and may impeach (i.e., bring charges) by a majority vote. The Senate tries the impeached official, and a two-thirds vote is necessary for conviction.

Board of Directors passage level

Typically, the assent of a majority of the directors present at the time the vote takes place is necessary for board approval. However, the articles of incorporation or bylaws may specify a higher level of approval. RMBCA §8.24(c).

Workers' Compensation Jurisdiction in Choice of Law

Any state with a legitimate interest in an injury and its consequences may apply its workers'-compensation act. Alaska Packers Ass'n. v. Indus. Accident Comm'n, 294 U.S. 532 (1935). In general (and this can vary depending on the state's statute), a state will have a legitimate interest if it is the state where (i) the employment relationship was entered into by the worker and the employer, (ii) the injury to the employee occurred, (iii) the employment relationship principally occurred (even if the injury did not occur there), or (iv) the employee or the employee's dependents reside. See Pac. Employers Ins. Co. v. Indus. Accident Comm'n, 306 U.S. 493 (1939); Restatement (Second) of Conflict of Laws § 181 (1971). Note that issues that arise with regard to workers' compensation are not always a choice of law between one state and another. Rather, the forum court decides whether its state's interests are sufficient to permit a recovery under its own workers'-compensation statute. If the forum court determines that it does not have sufficient interest to apply its statute, then the case will likely be dismissed without prejudice. The forum court will not choose to apply another jurisdiction's workers'-compensation act.

Director self-dealing and business judgment rule

Approval of a conflict-of-interest transaction by fully informed disinterested directors triggers the business judgment rule and limits judicial review to issues of gift or waste, with the burden of proof on the party attacking the transaction. See Del. Gen. Corp. Law § 144(a)(1); Marciano v. Nakash, 535 A.2d 400, 405 n.3 (Del. 1987).

Arson

Arson is the: i) Malicious; ii) Burning; iii) Of the dwelling; iv) Of another.

Elections Clause

Article I, Section 4 of the Constitution provides: "The times, places and manner of holding elections for Senators and Representatives shall be prescribed by each state legislature, but Congress may...make or alter such regulations." The Elections Clause explicitly empowers Congress to override state laws concerning federal elections.

Veto Power

Article I, Section 7 gives the President the power to veto any bill presented to him (i.e., passed) by Congress. Upon presentment, the President has 10 days to act on proposed legislation. If the President signs the bill, it becomes law. The President may also veto the bill by sending it back, with objections, to the house in which it originated. Congress may override the veto and enact the bill into law by a two-thirds vote in each house. A third option is that the President does nothing at all. If Congress is still in session at the end of the 10-day period, the bill becomes law without the President's signature. If Congress has adjourned during that time, however, the bill does not become law, because the President could not have returned it to its originating house. The President's failure to act on a bill in this situation is known as the "pocket veto" and cannot be overridden. The President may not exercise a "line item" veto, refusing part of a bill and approving the rest, because it violates the Presentment Clause. Clinton v. City of New York, 524 U.S. 417 (1998).

Origination Clause

Article I, Section 7, Clause 1 provides that "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Known as the Origination Clause, this provision is limited to "bills that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue." United States v. Munoz-Flores, 495 U.S. 385, 397 (1990), citing Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897).

Taxation and Spending Power

Article I, Section 8 provides: "Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States."

Power over DC

Article I, Section 8, Clause 17 provides that Congress has the power to "exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States." Under this provision, which is known as the "Enclave Clause," Congress has supreme authority over Washington, D.C., and may legislate freely with regard to D.C. law.

Presidential Powers

Article II, Section 1 grants the "executive power" to the President. The extent of this power has been interpreted broadly by the Supreme Court, which has emphasized that the President has no power to make laws but does have the power to enforce them; this enforcement power includes the exercise of prosecutorial discretion. Davis v. U.S., 512 U.S. 452 (1994). Generally speaking, the President's authority is broader in the area of foreign affairs than in domestic matters.

Presidential Appointment

Article II, Section 2 authorizes the President, with the advice and consent of the Senate, to appoint all "officers of the United States," including ambassadors and Justices of the Supreme Court. Congress may, however, delegate the appointment of "inferior" officials to the President alone (i.e., without Senate approval), the heads of executive departments, or the courts. "Inferior" officials are those supervised by Senate-confirmed appointees. Congress may not itself appoint members of a body with administrative or enforcement powers; such persons are "officers of the United States" and must be appointed by the President. Buckley v. Valeo, 424 U.S. 1 (1976) (makeup of the Federal Election Commission invalidated because a majority of its members were to be appointed by the President Pro Tem of the Senate and the Speaker of the House; the FEC's tasks were executive in nature, therefore, Congress had no right to appoint such federal officers).

Pardon Power for Federal Offenses

Article II, Section 2 provides the President with the power to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." This power applies only to federal cases; the President may not grant pardons for state crimes. The pardon or reprieve may be granted at any time after commission of the offense. Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867). The pardon or reprieve may be made subject to conditions and may take or encompass various lesser acts, such as remission of fines, penalties, and forfeitures or commutation of sentences. Ex parte William Wells, 59 U.S. (18 How.) 307 (1856). The power may be exercised with respect to groups of people as well as individuals. James Carter, Executive Order 11967, issued Jan. 21, 1977 (amnesty for Vietnam War draft dodgers).

Article III

Article III, Section 1 of the United States Constitution provides that "[t]he judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." Federal courts are generally created by the United States Congress under the constitutional power described in Article III. As noted above, Article III requires the establishment of a Supreme Court and permits the Congress to create other federal courts and place limitations on their jurisdiction. Although many specialized courts are created under the authority granted in Article I, greater power is vested in ArticleIII courts because they are independent of Congress, the President, and the political process.

SCOTUS Appellate Jurisdiction

Article III, Section 2 also provides that "in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction...with such exceptions, and under such regulations as the Congress shall make." There are two means of establishing appellate jurisdiction in the Supreme Court: certiorari (discretionary review) and direct appeal.

Supreme Court Original Jurisdiction

Article III, Section 2 gives the Supreme Court "original jurisdiction" (i.e., the case may be filed first in the Supreme Court) over "all cases affecting ambassadors, other public ministers and consuls and those in which a State shall be a party." Congress may not expand or limit this jurisdiction. Marbury v. Madison, 5 U.S. 137 (1803). It may, however, grant concurrent original jurisdiction to lower federal courts, which it has for all cases except those between states. 28. U.S.C. § 1251.

Article III Standing generally

Article III, Section 2 restricts federal judicial power to "cases" and "controversies." A federal court cannot decide a case unless the plaintiff has standing—a concrete interest in the outcome—to bring it. Congress cannot statutorily eliminate the constitutional standing requirement simply by allowing citizen suits, Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), but it can create new interests, the injury to which may establish standing, Massachusetts v. EPA, 549 U.S. 497 (2007).

Full Faith and Credit to Foreign Judgments

Article IV, § 1 of the U.S. Constitution, the Full Faith and Credit Clause, provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The clause is invoked primarily to enforce the judgment of one state court in another state. If a valid judgment is rendered by a court that has jurisdiction over the parties, and the parties receive proper notice of the action and a reasonable opportunity to be heard, then the Full Faith and Credit Clause requires that the judgment receive the same effect in other states as it receives in the state where it was rendered. Thus, a party who obtains a judgment in one state may petition the court in another state to enforce the judgment. The issues are not relitigated, and the court in the state where enforcement is sought must honor the judgment of the other state's court. Note, though, that the party against whom enforcement is sought may collaterally challenge the original state judgment based on lack of personal jurisdiction, or subject-matter jurisdiction, if the jurisdictional issues were not litigated or waived in the original action. Durfee v. Duke, 375 U.S. 106 (1963). The requirement of full faith and credit extends to the res judicata effect of the original state court judgment. Thus, if the original state court judgment would bar a subsequent action in the original state, then it acts to bar a subsequent action in any other state. This is the case even if the subsequent action would otherwise be permitted in that state.

Liability for partnership obligations

As a separate entity, a partnership is subject to suit for its obligations. RUPA307(a), (b). A partner is jointly and severally liable for all partnership obligations. RUPA306(a).

Liability of corporate officers

As an agent of the corporation, an officer does not incur liability to third parties merely for the performance of duties for the corporation. Of course, an officer can be liable to a third party if the officer has acted in his personal capacity (e.g., guaranteed a corporate loan) or has engaged in purposeful tortious behavior.

No suppression by prosecutor of favorable evidence

As discussed in IV.F., supra, due process requires the prosecution to disclose evidence favorable to the accused (i.e., exculpatory or impeaching) when such evidence is material to guilt or punishment. Evidence is material if there is a "reasonable probability" that disclosure would have changed the outcome of the proceeding; a reasonable probability is "a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). The prosecution's failure to disclose evidence in its possession both favorable and material to the defense entitles the defendant to a new trial. Brady v. Maryland, 373 U.S. 83 (1963). Under Bagley, the prosecution's failure to turn over specifically requested evidence will seldom, if ever, be excused. Similarly, police violate due process when, in bad faith, they destroy evidence that would have been useful to the defendant at trial. The defendant does not, however, have the right to require police to preserve all evidence if it is not certain that the evidence would have been exculpatory.

Congressional Action to Regulate States

As long as Congress is exercising one of its enumerated powers, Congress generally may regulate the states. For example, a federal minimum wage and overtime statute enacted under the commerce power can be applied to state employees. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). Similarly, Congress can prohibit the disclosure by state officials of personal information obtained from driver's license applications because such information constitutes an article of commerce that is being sold in interstate commerce. Reno v. Condon, 528 U.S. 141 (2000). If Congress determines that a state is violating a person's civil liberties, it can place limits on that state's activities by using the power of the Fourteenth and Fifteenth Amendments. See Oregon v. Mitchell, 400 U.S. 112 (1970).

Article III - prospective damages

As long as the effect of a lawsuit is not to impose retroactive damages on a state officer to be paid from the state treasury, a federal court may hear an action against a state officer, even if the action will force a state to pay money to comply with a court order.

No press immunity from laws of general applicability

As mentioned previously, the press has no greater First Amendment rights than does the general public, i.e., there is no special privilege allowing the press to invade the rights of others. As such, members of the press are not immune from the application of generally applicable laws, even if the application of such laws has a negative incidental effect on the ability to gather and report the news. Cohen v. Cowles Media Co., 501 U.S. 663 (1991).

Inheritance, equitable conversion, and choice of law

As noted above (see § II.C.3.c.4 Equitable conversion, supra), the application of the doctrine of equitable conversion is governed by the law of the state in which the land at issue is located. The doctrine of equitable conversion can also apply to testamentary directions to sell real property and distribute the proceeds. If the directions are absolute and leave the executor with no discretion, then the real estate is turned into personalty under the doctrine of equitable conversion as soon as the will takes effect. Thus, if a will instructs an executor to sell real property, then the doctrine of equitable conversion may be applicable, and the interest in real property may be treated as an interest in personalty if the will is valid under the law of the state where the real property is located.

Will Contracts - Consideration

As with any other contract, consideration must be given for a will contract to be enforceable. Situations in which the beneficiary promises to care for the testator in exchange for a bequest provide sufficient consideration and make the contract enforceable.

Invocation of right to silence

As with the Fifth Amendment right to counsel, the defendant must make a specific, unambiguous statement asserting his desire to remain silent. Merely remaining silent in response to police questioning does not invoke the privilege. Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013); Berghuis v. Thompkins, 560 U.S. 370 (2010). If a defendant invokes his Miranda right to remain silent, the interrogator(s) must "scrupulously honor" that request (e.g., immediately cease interrogation, allow for a significant passage of time, give a second set of warnings). However, if after the defendant is released from custody, the defendant indicates a desire to speak to police, then a subsequent interrogation would be lawful, as long as the defendant was not coerced. The defendant must again receive fresh Miranda warnings.

Public Records lack of trustworthiness

As with the business records exception, the court may exclude any evidence offered under this exception if the opponent shows that the source of the information or other circumstances indicate a lack of trustworthiness. Fed. R. Evid. 803(8)(B).

Search of motel room

As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. A motel clerk's consent to a governmental search of a room during the time it is rented is insufficient to justify the search. Stoner v. California, 376 U.S. 483 (1964).

Criminal Assault

Assault is: i) An attempt to commit a battery; or ii) Intentionally placing another in apprehension of imminent bodily harm.

Distribution and pour-over trust

Assets that are poured over from a will into an inter vivos trust pass outside of the reach of the testator's creditors as long as the trust was executed before or simultaneously with the will. The same is true of life insurance or other contract proceeds that are payable to the trustees or the trust as named beneficiary, except in these cases, some courts will not require that the trust be in existence at the time the beneficiary is named.

Arraignment

At an arraignment, the court informs the defendant of the crime with which the defendant has been charged and elicits the defendant's response (i.e., plea) to those charges. At this time, the court may appoint counsel for an indigent defendant. These events may also take place at the initial appearance.

General partner withdrawal in LP

At any time, a general partner may withdraw from a limited partnership by giving written notice to the other partners. When the withdrawal violates the partnership agreement, the general partner may be liable to the limited partnership for any damages from his breach of the agreement. RULPA 602. The withdrawal of a sole general partner does not necessarily trigger the dissolution of a limited partnership, however; the limited partners have 90 days in which to consent to continue the business and appoint a new general partner (by a majority of rights to receive distributions). RULPA 801.

Criminal Defense of Infancy

At common law, a child under the age of seven could not be convicted of a crime. A child at least seven years old but less than 14 years old was rebuttably presumed to be incapable of committing a crime. A child at least 14 years old could be charged with a crime as an adult. Modern statutes have modified this rule and provide that no child can be convicted of a crime until a certain age is reached, usually between the ages of 11 and 14.

Trustee duty of prudence

At common law, a trustee could not delegate any discretionary responsibilities because doing so would be assumed to be contrary to the settlor's intent. Under modern law, the trustee may delegate responsibilities if it would be unreasonable for the settlor to require the trustee to perform such tasks. If a function goes to the heart of the trust or constitutes a critical function concerning the property, then the function is discretionary and is not delegable. Otherwise, the function is merely ministerial and can be delegated. These same rules apply when a trustee delegates to a co-trustee.

Conspiracy - Number of Conspirators

At common law, there is no such thing as a unilateral conspiracy because two or more persons are required to form a conspiracy. However, under the modern trend and the MPC, the focus of liability is on the individual defendant and his agreement to the object of the conspiracy. A unilateral conspiracy may be formed when only one party actually agrees, such as when another party merely feigns agreement, or if the alleged co-conspirators are ultimately acquitted.

Interest of a witness to a will

At common law, a witness with a direct pecuniary interest under a will was not competent to witness the will. The will was invalid, unless two disinterested witnesses also witnessed the will. Many states now use a purge theory and invalidate the portion of the will providing an excess to the interested witness. To determine the excess portion, calculate the amount the interested witness would receive if the will were invalid (i.e., under the intestacy statute or prior will) and the amount the witness stands to receive under the will. If the amount to be received under the will is greater, then the excess interest is purged. There are two exceptions: (i) the interested witness is a third witness signing along with two other disinterested witnesses, or (ii) the interested witness would have taken had the will not been probated. The UPC, which previously followed the purge theory, has now abolished the interested witness doctrine. Unif. Probate Code § 2-505.

Extortion - common law

At common law, extortion was the unlawful taking of money by a government officer.

Revival of Will by Republication

At common law, followed in just a few states, the revocation of a will or codicil that had revoked another will automatically revived the original will. However, many states currently follow the no-revival approach, wherein the second will is viewed as two documents with two effective dates: it is a revoking instrument that is effective upon execution and also a dispositive instrument effective upon death. The modern approach adopted by the UPC focuses instead on the testator's intent. Unif. Probate Code § 2-509. Extrinsic evidence is admissible only if the revocation was by physical act. A will may be re-executed if a testator, with testamentary formalities, acknowledges the will. If the testator revoked the second will completely by an act, the presumption is that the testator did not intend to revive the first will and burden is thus on the proponent of the first will to prove that the testator intended to revive that will. By contrast, if the testator only partially revoked the second will by an act, the burden is on the challenger of the first will to prove that the testator did not intend to revive the revoked parts of the first will.

Trust - destructibility of contingent remainders

At common law, legal contingent remainders in real property were destroyed if they failed to vest before or at the moment the preceding estate ended. The modern trend abolishes the destructibility of contingent remainders.

Attempt and abandonment

At common law, once the defendant has taken a substantial step toward the commission of the offense, the defendant may not legally abandon the attempt to commit the crime because of a change of heart. Upon the completion of a substantial step, the crime of attempt is completed; there can be no abandonment or withdrawal. Some states do recognize voluntary abandonment as a defense to attempt. Even then, abandonment is not voluntary if it is motivated by a desire to avoid detection, a decision to delay commission of the crime until a more favorable time, or the selection of another similar objective or victim. Abandonment by the defendant does not constitute a defense for an accomplice who did not join in the abandonment or withdrawal.

Defense to Solicitation - Renunciation

At common law, renunciation was no defense to solicitation. Under the Model Penal Code, voluntary renunciation may be a defense, provided the defendant thwarts the commission of the solicited crime. MPC § 5.02(3).

Compliance with Will Formalities

At common law, strict compliance with the formal requirements of wills was required, as these were thought to serve important ritual, evidentiary, and protective functions. A minority of jurisdictions and the UPC have granted courts the power to probate a noncompliant will when there is clear and convincing evidence that the decedent intended for the document to serve as his will and has substantially complied with the statutory formalities. Unif. Probate Code § 2-503.

Rule in Shelley's Case

At common law, the Rule in Shelley's Case prevented remainders in a grantee's heirs by merging present and future interests so that the grantee would take in fee simple absolute. Most jurisdictions have abolished the Rule in Shelley's Case, and the parties now take the present and future interests according to the language in the deed.

Inter vivos trust - constructive trust

At common law, the Statute of Frauds requirement was strictly applied. The modern trend (adopted by the Restatement (Third) of Trusts, § 24) imposes a constructive trust when the required writing is lacking and orders the purported trustee to distribute the real property to the intended beneficiaries outright, rather than in trust.

Effect of the criminal principal's status on accomplice

At common law, the accomplice could be convicted of a crime only if the principal was also previously convicted of the crime. However, a principal in the second degree could be convicted even if the principal in the first degree was not convicted. A small minority of jurisdictions still subscribes to this approach. By modern statute, however, in most jurisdictions, an accomplice may be convicted of a crime even if the principal is not tried, is not convicted, has been given immunity from prosecution, or is acquitted.

Year-and-a-day rule

At common law, the defendant's act was conclusively presumed not to be the proximate cause of the killing if the victim died more than one year and one day after the act was performed. Most states either have abolished this rule or have extended the time period of responsibility.

Gift of Securities - pre-death changes

At common law, the treatment of a gift of securities depended on whether it was a specific or general bequest. Many states hold that a stock dividend, like a cash dividend, is a property interest distinct from stock given by a specific bequest. A bequest of stock owned by a testator when the testator's will is signed excludes subsequently acquired shares of the same stock. A bequest of a certain number of shares of a security that were owned by the testator at the time the will was executed is deemed to include any additional shares of that security or of another security acquired by reason of a stock split, reinvestment, or merger initiated by the original security. However, the beneficiary is not entitled to any pre-death cash dividends or distributions. If the bequest is a generic gift (e.g., does not specify a number of shares), then the beneficiary does not take any additional shares. Under the UPC, which rejects the common-law approach of classifying the type of bequest, a bequest of a security that was owned at the time the will was executed will include any additional shares of that security or of another security as long as the action was initiated by the corporate entity. A stock dividend is treated like a stock split instead of a cash dividend. Unif. Probate Code § 2-605.

Withdrawal from conspiracy, liability for conspiracy

At common law, withdrawal was not a defense to conspiracy because the conspiracy is complete as soon as the parties enter into the agreement. Under the federal rule, which is also the majority rule, a conspiracy does not come into existence until an overt act has been committed. Consequently, after there has been an agreement but before an overt act has been committed, a person may avoid criminal liability for conspiracy by communicating notice of his intent not to participate to the other potential co-conspirators or by informing the police about the agreement. Upon completion of the overt act, the conspiracy is formed, and withdrawal is no longer possible. Under the MPC and the minority view, subsequent withdrawal is possible only if the defendant acts voluntarily to "thwart the success" of the conspiracy.

Burglary specific intent to commit a felony

At the time of the breaking and entering, the defendant must have the intent to commit a felony (e.g., larceny, robbery, rape, murder) inside the dwelling. A defendant who fails to commit the underlying felony may nevertheless be guilty of burglary as well as attempt to commit the underlying felony. If the underlying felony is completed, it does not merge with the burglary. Many states have broadened the scope of the crimes intended to be committed to include misdemeanor thefts.

Tracking devices and sense enhancement

Attaching a device to a person's body without consent in order to track that person's movements is a search for Fourth Amendment purposes. Grady v. North Carolina, 575 U.S. ___, 135 S. Ct. 1368 (2015). With regard to automobiles, the Fourth Amendment does not prohibit the police from using technological devices to enhance their ability to search (e.g., radar detectors, computers to search license plates, surveillance equipment). United States v. Knotts, 460 U.S. 276 (1983) (placement of a tracking device on a car). However, physically intruding upon a suspect's property to install a technological device (e.g., a GPS tracker on a car to gather information) may constitute a search. United States v. Jones, supra. It is important to note the distinction between Knotts and Jones—in Knotts, the device was installed with the permission of the former owner (a person other than the suspect) before the car came into the defendant's possession; defendant Jones, on the other hand, owned the vehicle in question at the time the government installed the GPS device. The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search. Kyllo v. United States, 533 U.S. 27 (2001). Moreover, use of an electronic listening device to eavesdrop on a conversation made from a public phone booth can violate the speaker's reasonable expectation of privacy. Katz v. United States, supra.

Criminal Battery - requisite intent

Battery is a general-intent crime that includes not only intentional conduct but also criminal negligence (i.e., conduct that carries a high degree of risk to others).

Criminal Battery

Battery is the: i) Unlawful; ii) Application of force; iii) To another person; iv) That causes bodily harm to that person or constitutes an offensive touching.

Aggravated battery

Battery may carry a greater penalty, by statute, when serious bodily injury is inflicted or bodily injury is caused by the use of a deadly weapon.

Congressionally permitted state discrimination

Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause. Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946) (state tax only on out-of-state insurance companies upheld when Congress had enacted a law permitting states to regulate insurance in any manner consistent with federal statutes). It must be unmistakably clear that Congress intended to permit the otherwise impermissible state regulation; Congress must expressly allow or "affirmatively contemplate" such state legislation. The fact that the state policy appears to be consistent with federal policy or that the state policy furthers the goals that Congress had in mind is insufficient. South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 90 (1984).

Nondelegation Doctrine

Because Congress is vested by Article I with "all legislative powers," it may not delegate that power to any other branch of government. This principle is known as the "nondelegation doctrine." However, delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate. Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457 (2001). Almost any legislative delegation passes the "intelligible standards" requirement, so even broadly phrased standards have been upheld. Certain powers, however, are nondelegable, such as the power of impeachment and the power to declare war.

Guilty pleas - knowing and voluntary

Because a guilty plea constitutes both a confession and a waiver of various constitutional rights, the plea must be both intelligent and voluntary. Boykin v. Alabama, 395 U.S. 238 (1969); McCarthy v. United States, 394 U.S. 459 (1969). The record must reflect that the judge has determined that the defendant knows and understands the following: i) The nature of the charges and their essential elements; ii) The consequences of the plea (e.g., the maximum and minimum possible sentences, possible immigration consequences); and iii) The rights that the defendant is waiving (e.g., right to a trial). (Note: The judge does not personally need to explain each element of the crime. It is sufficient for the defendant's counsel to explain the nature and elements of the crime to him. Bradshaw v. Stumpf, 545 U.S. 175 (2005).) The judge must also determine that the plea did not result from force or improper threats or from promises other than those contained in the plea agreement.

Disclaimer of testamentary gift

Because acceptance of a testamentary gift is presumed, a party must actively disclaim if she wishes not to accept it. The disclaiming party is treated as if she had predeceased the decedent, and the property is distributed to the next eligible taker.

School integration

Because discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause. Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973). Moreover, a court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. Milliken v. Bradley, 418 U.S. 717 (1974); Missouri v. Jenkins, 515 U.S. 70 (1995) (state not compelled to create magnet schools in order to attract students from outside the district). If a school board does not take steps to eliminate intentional racial segregation of schools, a court can order the district to implement measures, such as busing, to remedy the discrimination. Court-ordered busing is temporary, however, and must be terminated once the "vestiges of past discrimination" have been eliminated. Bd. of Educ. v. Dowell, 498 U.S. 237 (1991).

Trusts and Rule Against Perpetuities

Because future interests are trust components, trusts are subject to the Rule Against Perpetuities, meaning that a trust may fail if all interests there under may not vest within the applicable period of perpetuities (usually a life in being plus 21 years). Some jurisdictions take a "wait and see" approach to the application of the rule, refraining from invalidating future interests until it is clear that they will not vest within the perpetuities period.

Management of property transferred to minors

Because minors lack the legal capacity to hold property, the law provides various ways in which others might manage property for minors. The three property management options are: (i) guardianship, (ii) custodianship, and (iii) trusteeship. Custodianship and trusteeship are available only through the creation of a will.

Watered stock

Because stock is deemed validly issued, paid in full, and non-assessable once the corporation receives adequate consideration (as determined by the board of directors), the RMBCA does not recognize or address the issue of "watered stock," i.e., stock that is issued for consideration less than par value.

Internet regulation

Because the Internet is not composed of scarce frequencies as are the broadcast media, and because of the reduced risk of an unexpected invasion of privacy over the Internet, any regulation of Internet content is subject to strict scrutiny. Reno v. ACLU, 521 U.S. 844 (1997).

Broadcast Regulation

Because the broadcast spectrum is a limited resource, radio and television broadcasters are said to have a greater responsibility to the public, and they therefore can be more closely regulated than print and other media. Broadcasters may be sanctioned, therefore, for airing "patently offensive sexual and excretory speech," even if such speech does not qualify as obscene under the Miller test, in the interest of protecting children likely to be listening. FCC v. Pacifica Found., 438 U.S. 726 (1978).

Undue Influence on Testator - Confidential Relationship

Because the defendant is in the best position to provide evidence, the majority of jurisdictions require a burden-shifting approach. If the elements of the jurisdiction's statute are satisfied, then a presumption of undue influence arises that shifts the burden to the defendant. A presumption of undue influence arises when the principal beneficiary under a will stands in a confidential relationship to the testator (such as the testator's attorney or physician), when he participated in executing the will, and when the gift to the beneficiary is unnatural or consists of the majority of the estate. Some jurisdictions also include whether the testator was of a weakened intellect. No confidential relationship exists between husband and wife. To have a confidential relationship, the testator must confide, trust, or rely upon the other party as a result of his weakened or dependent state.

Trust Administration and Trustee's Duties

Before any duties are imposed, the trustee must accept the trusteeship. The trustee is then charged with safeguarding the trust property by purchasing insurance, earmarking assets, recording deeds, identifying and locating beneficiaries, and following the settlor's instructions. The trustee acts as a fiduciary, and, in most cases, his powers are not personal but rather attach to his office. If there are two trustees, the majority of states require them to act with unanimity absent a contrary intent expressed in the trust agreement. If there are more than two trustees, however, most states require a majority only. As a general proposition, a trustee's duties cannot be unilaterally enlarged by the settlor after the trustee has accepted his office. A well-drafted trust instrument will therefore include an additions clause if the settlor contemplates enlarging the trustee's responsibilities with additional trust assets. Even then, a trustee may be able to reject additions.

Actus Reus

Before there can be a crime, there must be a criminal act (actus reus). The criminal act must be a voluntary, affirmative act that causes a criminally proscribed result. The act requirement may also be satisfied by an "omission" or failure to act under circumstances imposing a legal duty to act. A bad thought standing alone cannot result in criminal liability.

Defense Against Foreign Law for Public Policy

Both the Restatement (First) of Conflict of Laws and the Restatement (Second) of Conflict of Laws provide that if a foreign law violates the public policy of the forum state, then the forum court may refuse to apply that law. If the public-policy exception is applicable, then the court dismisses the action without prejudice. Public-policy concerns must be fundamental and strongly held, and the mere variance between the foreign law and the forum law is not enough to deny the application of the foreign law. The forum court must closely scrutinize the foreign law and the forum state's public policy. Under the governmental-interest approach, this defense is not incorporated. Instead, the forum state will apply its public policy affirmatively in reaching a decision to apply its own law.

Limitations on Choice of Law

Both the U.S. Constitution and state and federal statutes can limit a court's power to apply a particular choice-of-law rule. In certain circumstances, an agreement between the parties can also require the application of a particular choice of law in court.

Burglary breaking

Breaking is accomplished by using force to create an opening into a dwelling, such as by shattering a window or kicking in a door. The force used may be slight, such as opening an unlocked door or window. If entry is obtained by fraud or threat, then there is a breaking. If the defendant had consent by the owner to enter, then no breaking occurs unless the consent was obtained by fraud, or the defendant exceeded the scope of such consent. If entry is gained with consent, a breaking can still occur if the defendant breaks into a part of the dwelling structure, such as by opening a closet door or wall safe. The mere opening of an object within the dwelling, such as a desk drawer, trunk, or box, does not constitute a breaking. The use of force to exit a dwelling does not constitute a breaking. Most states now require only that the defendant enter the premises; a breaking is not required. The common law requires a breaking.

Federal Statutory Limitations on Choice of Law

Certain federal statutes may preempt a state from claiming jurisdiction over certain cases. For example, federal courts are given exclusive jurisdiction in patent, antitrust, and bankruptcy matters.

Pre-trial detention

Certain pretrial detention practices that are reasonably related to maintaining jail security are permissible and do not violate due process or the Fourth Amendment. These include routine inspections of inmates' cells, prohibiting receipt of outside food or personal belongings, body-cavity searches, and double bunking.

Charitable trusts and rule against perpetuities

Charitable trusts are not subject to the Rule Against Perpetuities and may continue indefinitely. A trust can be created that calls for transfers of interest among charities, but it cannot direct the transfer of interest between a charitable beneficiary and a noncharitable beneficiary.

Citizenship standing

Citizens do not have standing to assert a claim to enforce a constitutional provision merely because they are citizens, although a citizen may bring an action against the government to compel adherence to a specific federal statute. Even in such a case, the plaintiff must have directly suffered an injury in fact.

State Secrets

Claims of privilege based on national security are generally accorded enhanced deference. United States v. Reynolds, 345 U.S. 1 (1953) (recognizing a "state secrets" privilege). But see In re NSA Telcoms. Records Litig., 564 F. Supp. 2d 1109 (2008) (the "state secrets" privilege was a common-law privilege that could be limited by congressional action).

Child legitimacy

Classifications on the basis of status as a nonmarital child (i.e., those that distinguish between "legitimate" and "illegitimate" children) are subject to intermediate scrutiny—they must be substantially related to an important governmental interest. The Court will closely examine the purpose behind the distinction, and it will not uphold legislation designed to punish the offspring of a nonmarital relationship. To that end, states may not prohibit children of unmarried parents from receiving welfare benefits, New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973), workers' compensation benefits upon the death of a parent, Weber v. Aetna Cas. and Sur. Co., 406 U.S. 164 (1972), or an inheritance from an intestate father, Trimble v. Gordon, 430 U.S. 762 (1977). In addition, a state cannot require a paternity action brought on behalf of an illegitimate child to be commenced within a limited time after birth in order to secure child support, while imposing a similar time limit on a legitimate child seeking child support from a parent. Clark v. Jeter, 486 U.S. 456 (1988).

Co-Trustee Liability

Co-trustees are jointly liable, although the liability may be limited if only one trustee acts in bad faith or benefited personally from the breach. A co-trustee may be liable for breach for: i) Consenting to the action constituting the breach; ii) Negligently failing to act to prevent the breach; iii) Concealing the breach or failing to compel redress; or iv) Improperly delegating authority to a co-trustee.

Full Faith and Credit For Foreign Judgments and Collateral Estoppel

Collateral estoppel eliminates the opportunity for parties to litigate an issue again in a subsequent suit. Collateral estoppel applies when: i) The substantive issue of the case at hand was previously litigated; ii) The issue was necessary to supporting the judgment in the initial proceeding; and iii) The party against whom collateral estoppel will be applied was either a party in the original suit or had access to information from the original proceeding and had a full and fair opportunity to litigate the issue in the original suit.

Comity

Comity is the voluntary agreement to recognize a foreign judgment. In most cases, full faith and credit is not extended to cases decided in foreign countries, except in cases in which there are treaties agreeing to recognize certain judgments. U.S. courts have discretion to decide whether to recognize foreign country judgments. In deciding whether to recognize such judgments, the forum court will consider whether the foreign court had jurisdiction over the matter and whether the foreign court used fair procedures in deciding the case. If recognition of a foreign country judgment is granted, then the law of the state that is recognizing the judgment governs the method of enforcement.

Partnership profits w/o agreement

If there is no agreement or the agreement is silent as to the division of the profits and losses, each partner is entitled to an equal share of the partnership profits and losses. When the agreement addresses only the division of partnership profits, partnership losses are shared in the same manner. RUPA401(b).

Commercial Speech

Commercial speech—advertising and similarly economically oriented expression—is entitled to an intermediate level of First Amendment protection. Restrictions on commercial speech are reviewed under a four-part test: i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited); ii) The asserted governmental interest must be substantial; iii) The regulation must directly advance the asserted interest; and iv) The regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a "reasonable fit" between the government's ends and the means chosen to accomplish those ends. Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989). Central Hudson Gas & Elec. v. Pub. Svc. Comm'n, 447 U.S. 557 (1980). Under this test, the Court has struck down laws prohibiting truthful advertising of legal abortions, contraceptives, drug prices, alcohol prices, and attorneys' fees and regulation of billboards on the basis of aesthetic value and safety.

Spouses as co-conspirators

Common law did not consider husband and wife as co-conspirators because the law viewed them as a single entity. However, they could, as an entity, conspire with a third person. Nearly every jurisdiction has abolished this common-law concept.

Trustee powers generally

Common law grants powers to the trustee outside of those authorized within the trust document. The trustee can petition the court to obtain powers not expressly authorized in the trust. The modern trend is for the court to grant the trustee all those powers necessary to act as a reasonably prudent person in managing the trust.

Burglary

Common-law burglary is the: i) Breaking and; ii) Entering; iii) Of the dwelling; iv) Of another; v) At nighttime; vi) With the specific intent to commit a felony therein.

Confidential Marital Communications

Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. The majority view is that the privilege is held by both spouses. Some courts, however, have taken the position that only the communicating spouse can assert the privilege. See 1 Kenneth S. Broun et al., McCormick on Evidence § 83 (6th ed. 2006). This privilege applies only to communications made during marriage. This privilege applies to both civil and criminal cases. The time for asserting this privilege extends beyond the termination of the marriage. Thus, either party may assert the privilege—by refusing to testify or by preventing the other party from doing so—at any time, even after divorce or the death of one spouse.

Intent to kill

Conduct accompanied by the intent to kill that is the legal cause of the death of a living person constitutes intent-to-kill murder unless the legal circumstances surrounding the homicide are such that the crime is reduced to voluntary manslaughter. An inference of intent to kill may be made if a deadly weapon was used intentionally in the commission of the crime.

Naturalization

Congress has exclusive authority over naturalization. Article I, Section 8, Clause 4 allows Congress to "establish a uniform rule of naturalization." However, the right of national citizenship in the Fourteenth Amendment prevents Congress from taking away the citizenship of any citizen without her consent, unless that citizenship was obtained by fraud or in bad faith. Afroyim v. Rusk, 387 U.S. 253 (1967) (federal statute that stripped citizenship for voting in a foreign election struck down); Costello v. United States, 365 U.S. 265 (1961) (citizen's willful failure to accurately state his occupation on a naturalization application resulted in loss of citizenship).

Aliens

Congress has plenary power over aliens. Fiallo v. Bell, 430 U.S. 787 (1977). Aliens have no right to enter the United States and may be refused entry for reasons such as their political beliefs. Kleindienst v. Mandel, 408 U.S. 753 (1972). However, this power is subject to the constraints of the Fifth Amendment Due Process Clause for an alien within the United States. Zadvydas v. Davis, 533 U.S. 678 (2001). An alien may generally be removed from the United States, but only after notice and a removal hearing. 8 U.S.C. §§ 1229, 1229a.

Article I Powers generally

Congress has power over bankruptcies, maritime matters, coining of money, fixing of weights and measures, and patents and copyrights.

Limitations on SCOTUS Appellate Jurisdiction

Congress has some power to limit the Supreme Court's appellate jurisdiction by statute. Ex parte McCardle, 74 U.S. 506 (1868). There are constraints on this power, because to deny all Supreme Court jurisdiction over certain types of cases would undermine the constitutional system of checks and balances. Boumediene v. Bush, 553 U.S. 723 (2008) (Congress and President cannot remove Supreme Court's authority to say "what the law is" (quoting Marbury v. Madison, 5 U.S. 137 (1803))). Note that most federal cases are filed in district court and appealed, if at all, to the courts of appeals. The jurisdiction of the federal courts is set, within the framework of Article III, by statute. For example, Congress requires the amount in controversy necessary for federal jurisdiction over a case between citizens of different states to exceed $75,000. 28 U.S.C. § 1332.

Military courts and tribunals

Congress has the power to establish military courts and tribunals under Article I, Section 8, Clause 14 and the Necessary and Proper Clause. These courts may try enemy soldiers, enemy civilians, and current members of the U.S. armed forces, but they do not have jurisdiction over U.S. civilians. U.S. citizens captured and held as "enemy combatants" are entitled, as a matter of due process, to contest the factual basis of their detention before a neutral decision maker. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Under the Suspension Clause of Article I, Section 9, Clause 2, all persons held in a territory over which the United States has sovereign control are entitled to habeas corpus (or similar) review of the basis for their detention, unless the privilege of seeking habeas corpus has been suspended. Boumediene v. Bush, 553 U.S. 723, (2008). Because military tribunals are not Article III courts, not all constitutional protections apply (such as the right to a jury trial or grand jury indictment).

Necessary and Proper Clause

Congress is given the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government. McCulloch v. Maryland, 17 U.S. 316 (1819). The Necessary and Proper Clause is not an independent source of power, but it permits Congress's otherwise designated authority to be exercised fully. This clause permits Congress to enact legislation to execute a treaty. Missouri v. Holland, 252 U.S. 416, 432 (1920).

Commerce Clause and non-economic activity

Congress's power under the Commerce Clause to regulate intrastate activity that is not obviously economic (so-called "non-economic" activity) is limited to some degree by principles of federalism, at least when the regulation involves an area of traditional state concern. The non-economic activity must have a substantial economic effect on interstate commerce. Nat'l Fed'n of Indep. Bus. v. Sebelius (The Patient Protection and Affordable Care Cases), 567 U.S. 519 (2012) (requiring individuals not engaged in commercial activities to buy unwanted health insurance could not be sustained as a regulation of interstate commerce); United States v. Morrison, 529 U.S. 598 (2000) (federal civil remedy for victims of gender-motivated violence held invalid); United States v. Lopez, 514 U.S. 549 (1995) (federal statute regulating possession of a firearm within 1,000 feet of a public school struck down).

Consent searches

Consent can serve to eliminate the need for police to have probable cause as well as to first obtain a warrant in order to conduct a search.

Rape - threat of harm

Consent is ineffective if a woman consents to sexual intercourse because of a threat of harm, although the harm threatened must be imminent and must involve bodily harm. Economic duress is not sufficient.

Criminal Defense - Ineffective consent

Consent may be ineffective when given by a legally incompetent person; by a victim who is unable to make a reasonable judgment due to age, mental disease or defect, or intoxication; or by a victim whom the law seeks to protect. Consent obtained by fraud, duress, or deception may also be ineffective.

Criminal Defense - Consent

Consent of the victim is not a defense to a crime unless the consent negates a required element of the crime or precludes the harm sought to be avoided by the crime. Such consent must be voluntarily and freely given, involve no fraud, and be given by one competent to consent. Consent is a defense to rape (unless the woman is a minor), since rape is defined as sexual intercourse without consent. Consent is also a defense to kidnapping if an adult (but not a minor) consents to traveling with the defendant.

Criminal Defense - Consent to bodily injury

Consent to bodily injury or to conduct that may cause bodily injury may constitute a defense when the injury is not serious or, with regard to a sporting event or similar activity, the conduct and injury are reasonably foreseeable (e.g., boxing).

Conspiracy - Specific Intent

Conspiracy is a specific-intent crime. A conspirator must have the intent to agree and the intent to commit the criminal objective. The intent to agree may be inferred from the conduct of the parties. Because intent to agree and to commit the crime are elements of conspiracy, criminal liability for a conspiracy cannot be based solely on knowledge of the existence of the conspiracy. For example, a merchant who supplies goods to a conspirator knowing that the conspirator intends to use the goods in furtherance of the objective of the conspiracy is not a member of the conspiracy simply because the merchant possessed such knowledge. Instead, the merchant must take an additional step to show such intent, such as selling the goods at an exorbitant price, basing the price of the goods on a percentage of the conspiracy's "take," or ordering specially manufactured goods that the merchant does not normally sell.

Embezzlement conversion

Conversion is the inappropriate use of property, held pursuant to a trust agreement, which causes a serious interference with the owner's rights to the property. Interference with the owner's rights to the property can be caused by selling the property, damaging it, or unreasonably withholding possession. The defendant need not personally benefit from the conversion. No movement or carrying away of the property is required. If it is unclear whether there was a conversion of the property, then the victim must demand a return of the property, and the embezzler must refuse to return the property before a claim for embezzlement can be made.

Director self-dealings - related persons

Corporate dealings with persons who are related to the director are also subject to conflict-of-interest rules. Related individuals include the director's immediate family, parents, siblings, and grandchildren, including the spouses of these individuals, as well as a trust or an estate of which any of those individuals is a substantial beneficiary or the director is a fiduciary. In addition, the conflict-of-interest rules can apply to transactions between the corporation and another entity with which the director is associated, such as another corporation of which the director is a director, an employee, or an agent or a partnership of which the director is a general partner, an employee, or an agent. RMBCA § 8.60(1), (3).

Two-prong test for admissibility of identification

Courts use a two-prong test to determine the admissibility of a pre- or post-indictment corporeal or non-corporeal identification. To prevail, the defendant must demonstrate that the procedure was impermissibly suggestive and that there was a substantial likelihood of misidentification. In order to have the identification admitted, the prosecution can offer evidence that the identification was nonetheless reliable. In making its ruling, the court is to consider the following factors: i) The witness's opportunity to view the defendant at the time of the crime; ii) The witness's degree of attention at the time of the crime; iii) The accuracy of the witness's description of the defendant prior to the identification; iv) The level of certainty at the time of the identification; and v) The length of time between the crime and the identification. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Only when the indicators of a witness's ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion should the identification be suppressed on due process grounds. Perry v. New Hampshire, supra, at 725, quoting from Manson v. Brathwaite, 432 U.S. 98, 114 (1977). This test applies both to an out-of-court identification and an in-court identification that is based on a prior out-of-court identification.

Domicile by Operation of Law - Infants

Infants (i.e., minor children) are domiciled where their custodial parents are domiciled. If a child is emancipated, then the child may establish her own domicile.

Constructive Trust

Courts use constructive trusts to prevent unjust enrichment if the settlor causes: fraud, duress, undue influence, breach of duty, or detrimental reliance by a third party on a false representation. There must have been wrongful conduct in order to impose a constructive trust. The tracing doctrine may be applied if trust property has already been sold or otherwise disposed of, allowing the beneficiary of the constructive trust to pursue the sale proceeds or other property received. In such a case, the constructive trust may be imposed either against the seller or against the buyer. However, a breach of a promise will not give rise to a constructive trust unless the promise is fraudulent, the breach is related to the devisee's or heir's promise to hold property for a third party, the breach is one in a confidential relationship, or there is a breach by the buyer to the debtor at a foreclosure sale. The burden of clear and convincing evidence is on the party seeking the constructive trust. A constructive trust will almost always be imposed when one individual commits homicide and thereby benefits from his victim's estate. A party with unclean hands will usually be estopped from arguing for the creation of a constructive trust.

Informants and probable cause for search

Courts use the totality of the circumstances test to determine whether information provided by a police informant is sufficient to create probable cause. The affidavit generally does not need to include any particular information about the informant, including the informant's identity, so long as a neutral magistrate can find that, based on the informant's information and all other available facts, there is probable cause to issue the warrant. Illinois v. Gates, 462 U.S. 213 (1983); McCray v. Illinois, 386 U.S. 300 (1967).

Duties and prospective partners

Dealings between prospective partners in forming a partnership are not subject to these duties, but prospective partners may be subject to the general contractual obligations to deal honestly and without fraud. RUPA404, cmt. 2.

Writ of Habeas Corpus

Defendants may attack their convictions, even if their appeal was unsuccessful or not available, by challenging the lawfulness of the detention under a writ of habeas corpus. The defendant does not have to be in custody; she may be out on bail, probation, or parole. However, if the defendant's sentence has expired and her prior conviction is being used to enhance a later one, then the defendant does not satisfy the in-custody requirement to petition for the habeas writ. A writ of habeas corpus proceeding is civil in nature. Therefore, the "beyond a reasonable doubt" standard is not applicable. The petitioner must demonstrate only the unlawfulness of the detention by a preponderance of the evidence. If the petitioner is granted the writ, then the state may appeal, and double jeopardy does not apply to either the appeal or the retrial after the granting of the writ. An indigent person does not have a right to have counsel appointed to assist in perfecting her habeas petition.

Fruits of a tainted confession - physical evidence

Derivative physical evidence (e.g., a gun) obtained as a result of a non-Mirandized confession (i.e., a confession that is inadmissible due to the police's failure to give Miranda warnings) is admissible, so long as that confession was not coerced. United States v. Patane, 542 U.S. 630 (2004).

Due process - parental status

Different burdens of proof are applied to termination of parental rights and paternity actions. Because termination of parental rights deprives parents of a fundamental right, the state must use clear and convincing evidence to support allegations of neglect. Santosky v. Kramer, 455 U.S. 745 (1982). When a mother or child is initiating a paternity suit, due process requires proof by only a preponderance of evidence. Rivera v. Michigan, 483 U.S. 574 (1987). In a paternity action initiated by the state, the state must pay for the necessary blood work used in determining paternity. Little v. Streater, 452 U.S. 1 (1981).

Selection of Board of directors

Directors are selected by the shareholders at the annual shareholders' meeting and may be elected by straight or cumulative voting and by one or more classes of stock. RMBCA §§7.28, 8.03.

Board of Directors Duty of Care

Directors have a duty to act with the care that a person in a like position would reasonably believe appropriate under similar circumstances. As an objective standard, the director is presumed to have the knowledge and skills of an ordinarily prudent person. In deciding how to act, the director is also required to use any additional knowledge or special skills that he possesses.

Gender classifications generally

Discrimination based on gender is "quasi-suspect" and subject to intermediate scrutiny, which is less stringent than strict scrutiny but tougher than the rational basis test. Just as with suspect classifications and fundamental rights, there must be discriminatory intent by the government to trigger intermediate scrutiny; disparate impact is not enough. Under intermediate scrutiny, the burden is on the state to show that a statute or regulation that treats the sexes differently is substantially related to an important governmental interest. This test applies whether the classification is invidious or benign, and it is now applied rather stringently, requiring the government to show that an "exceedingly persuasive justification" exists for the distinction, and that separate facilities (such as separate sports team facilities as state universities) are "substantially equivalent." United States v. Virginia, 518 U.S. 515 (1996).

Recognition of Divorce Judgments

Divorce decrees from other states are entitled to full faith and credit as long as the original state had jurisdiction to issue the decree and the decree is valid in the original state. Decrees have proper jurisdiction if at least one person resides where the decree was issued.

Attorney-Client privilege vs. work product

Documents prepared by an attorney for his own use in connection with the client's case are not covered by the attorney-client privilege because they are not communications. However, such documents are protected under the "work product" doctrine and are not subject to discovery unless the party seeking disclosure (i) demonstrates a substantial need for the information, and (ii) cannot obtain the information by any other means without undue hardship. The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery. Fed. R. Civ. P. 26(b)(3).

Section 16(b) short-swing profits

During any six-month period, a corporate insider who both buys and sells his corporation's stock is liable to the corporation for any profits made. Profits are computed by matching the highest sale price with the lowest purchase price, then the next highest sale price with the next lowest purchase price, and so on, during the six-month period. Any loss is not taken into account, and all shares are matched with other shares only once.

Partnership access to records

During business hours, a partnership must provide its partners and their agents (including attorneys) with access to all its records, including its financial records, and permit them not only to inspect but also to copy such records. RUPA 403(a). A partnership agreement may not restrict this access unreasonably. RUPA 103(b)(2). In addition, each partner and the partnership must furnish to a partner (or the partner's legal representative), without demand, any information concerning the partnership's business and affairs reasonably required for the proper exercise of the partner's rights and duties under the partnership agreement or RUPA and, on demand, any other information concerning the partnership's business and affairs unless the demand or the information demanded is unreasonable or improper. RUPA 403(c).

Partnership account

Each partner has a partnership account. That account consists of contributions to the partnership and the partner's share of the profits, reduced by any liabilities, distributions, or losses. RUPA 401(a).

Settlement of partner's accounts upon dissolution

Each partner's account, which reflects not only that partner's contributions to the partnership but also the partner's share of the partnership's pre-dissolution profits and losses, must be adjusted to reflect the profits and losses that result from the liquidation of the partnership assets. After these adjustments, any partners with a negative account balance must contribute to the partnership the amount necessary to bring the account balance to zero. Then the partnership must make a final liquidating distribution to any partner with a positive account balance. RUPA 807(b).

Creditor Claim on Estate - Period of Limitations

Each state has nonclaim statutes that bar creditors from filing claims after a specified time period has elapsed. If a claim is not made within that specified period after probate is opened, then the claims are barred.

Burglary entering

Entering occurs when any portion of the defendant's body (e.g., a hand through a broken windowpane) or an instrument used by the defendant to gain entry (e.g., a rock thrown through a window) crosses into the dwelling without permission through the opening created by the breaking. Breaking and entering need not happen at the same time.

Criminal Defense - Entrapment

Entrapment is the conception and planning of an offense by a law-enforcement officer, and his procurement of its commission by a defendant who would not have committed that offense except for the trickery, persuasion, or fraud of the officer. If an officer merely offers an already-predisposed person the opportunity to commit a crime, it is not entrapment. In other words, the defendant must lack any predisposition to commit the crime. Entrapment can occur through the use of an undercover agent but not by a private citizen. The modern trend allows a defendant to deny participation in an event, yet still raise the defense of entrapment. Traditionally, the defendant was precluded from using the entrapment defense if he denied his participation in the event.

Defenses to Full Faith and Credit of Foreign Judgments - Equitable

Equitable defenses such as extrinsic fraud do not have to be enforced. Note that only extrinsic fraud cases, such as a misrepresentation of facts by a party or a party's attorney that does not allow the case to be tried fully with all of the evidence, fall under this defense. Intrinsic fraud, such as perjured testimony, would not constitute a valid defense.

Extent of limited partner liability

Even if a limited partner participates in the control of the business, she is personally liable only to persons who transact business with the limited partnership, reasonably believing, based on the limited partner's conduct, that the limited partner is a general partner. RULPA 303(a).

Obtaining evidence by questionable methods

Evidence obtained in a manner that shocks the conscience is inadmissible. Examples of such methods of gathering evidence include inducements by official actions that offend the sense of justice and serious intrusions into the body, such as with surgery to remove a bullet. Contrast that, however, with a cheek swab to obtain a DNA sample, which is a reasonable intrusion because it is quick and painless, and involves no surgical intrusion beneath the skin. Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958 (2013).

Hearsay Exception - Judgment of Previous Conviction

Evidence of a final judgment of conviction is not excluded as hearsay if: i) The judgment was entered after a trial or guilty plea, but not a plea of no contest (i.e., nolo contendere); ii) The conviction was for a crime punishable by death or imprisonment for more than one year; and iii) The evidence is offered to prove any fact essential to sustain the judgment. If the prosecutor in a criminal case offers evidence of a final judgment of conviction for a purpose other than impeachment, the judgment must have been against the defendant. The pendency of an appeal may be shown but does not affect admissibility. Fed. R. Evid. 803(22).

Evidence of offers to pay medical expenses

Evidence of the payment, offer to pay, or promise to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Fed. R. Evid. 409.

Wills and Mistakes

Extrinsic evidence is admissible to show a mistake in the execution of a will, such as when the testator is unaware that she was signing a will. In a case of the wrong will being signed, courts are divided as to whether relief should be granted, although the modern trend is moving in the direction of granting relief. No extrinsic evidence is allowed and no relief is granted if the mistake involves the reasons behind the testator making the will or a particular gift. For example, if a testator would normally make a will leaving his estate to his two children, but, under the mistaken belief that one of his children has died, he instead makes a will devising his entire estate to only the other child, the court would not allow evidence of the mistake, and only the one child would take the estate. There is an exception to this rule if the testator was fraudulently induced or the mistaken inducement appears on the face of the will. If a will is missing provisions, then the court will not allow extrinsic evidence to show that the omission was accidental and will not grant relief. The court's rationale is that the testator presumably knew of the will's contents when he signed it.

False Pretenses

False pretenses (also called "obtaining property by false pretenses" or "larceny by false pretenses") is: i) Obtaining title to the property; ii) Of another person; iii) Through the reliance of that person; iv) On a known false representation of a material past or present fact; and v) The representation is made with the intent to defraud.

Express Preemption

Federal law expressly preempts state law in cases in which the Constitution makes the federal power exclusive (such as the powers to coin money or declare war) or when Congress has enacted legislation that explicitly prohibits state regulation in the same area (e.g., the Federal Cigarette Labeling and Advertising Act forbids state laws that regulate either cigarette labels or the "advertising or promotion" of labeled cigarettes "based on smoking and health," 15 U.S.C. § 1334).

Implied Preemption

Federal preemption is implied when any of the following circumstances exist: i) Congress intended for federal law to occupy the field (e.g., Hines v. Davidowitz, 312 U.S. 52 (1941) (new federal law requiring registration of all aliens preempted preexisting state law requiring registration of aliens within the state)); Intent to occupy a field can be inferred from a framework of regulation so pervasive that Congress left no room for states to supplement it or when there is a federal interest so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, (1947). When Congress occupies an entire field, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. Arizona v. U.S., 567 U.S. 387 (2012) (even if state may make violation of federal law a crime in some instances, it cannot do so in a field, like alien registration, that has been occupied by federal law). ii) The state law directly conflicts with the federal law by, for example, requiring conduct that is forbidden by the federal law or making it impossible (or nearly so) to comply with both, e.g., Rose v. Arkansas State Police, 479 U.S. 1 (1986) (federal law providing that federal death benefits for state law-enforcement officers be in addition to other state benefits preempted contrary state law requiring that other benefits be reduced by the amount of death benefits); or iii) The state law indirectly conflicts with federal law by creating an obstacle to or frustrating the accomplishment of that law's purpose, e.g., Perez v. Campbell, 402 U.S. 637 (1971) (state law suspending licenses of all drivers with unpaid accident judgments frustrates the purpose of federal bankruptcy laws to provide a fresh start). The existence of a valid purpose for a state law does not prevent federal preemption. Id.

First Degree Murder

First-degree murder is generally defined as a deliberate and premeditated murder. In addition, felony murder is frequently classified as first-degree murder. Because the specific criteria for first-degree murder are established only by statute, a homicide cannot be first-degree murder without a corresponding statute. The distinguishing element of first-degree murder is premeditation, meaning the defendant reflected on the idea of killing or planned the killing. The amount of time needed for premeditation may be brief, as long as, after forming the intent to kill, the defendant had sufficient time to become fully conscious of the intent and to consider the killing (i.e., had time for reflection). This requirement does not apply to felony murder.

Shareholder Quorum Requirements

For a decision made at a shareholders' meeting to be valid, there must be a quorum of the shares eligible to vote present at the meeting. Usually, the required quorum is a majority of votes entitled to be cast on a matter. A share that is present for any purpose at a meeting is deemed present for quorum purposes. RMBCA §7.25.

Affirmative action and past discrimination

For a governmental affirmative action program based on race to survive, the relevant governmental entity must show more than a history of societal discrimination. The government—whether federal, state, or local—must itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects. In other words, the elimination of past discrimination in a particular governmental institution is a compelling state interest; attempting to remedy general societal injustice through affirmative action is not.

Requirements for Full Faith and Credit for Foreign Judgments

For a judgment to meet the full faith and credit requirements, it must: i) Have been brought in the proper jurisdiction; Note that if the question of jurisdiction was fully and fairly litigated in the original case, such determination will itself be entitled to full faith and credit, even if it was wrong. ii) Be finalized, with no appeals outstanding; and iii) Be on the merits, meaning the substantive issues were decided by a court, rather than the matter being resolved by procedural issues such as improper jurisdiction, venue, or the statute of limitations. A judgment on the merits would include a judgment entered after full trial, a summary judgment, a judgment as a matter of law, and a default judgment. A determination of whether the full faith and credit requirements have been met is made by looking to the law of the state that rendered the judgment. If a valid, final judgment is inconsistent with another valid, final judgment, then the most recent judgment is entitled to full faith and credit.

Wrongful partner dissociation

For a partnership that is unlimited by time or undertaking, a partner's dissociation is wrongful only when it is in breach of an express provision of the partnership agreement. For a partnership that is for a definite term or undertaking, the partner's dissociation is wrongful when, before the expiration of the term or completion of the undertaking, the partner: i) Withdraws, unless withdrawal follows within 90 days of another partner's wrongful dissociation or dissociation due to death, bankruptcy, or other circumstances described below; ii) Is expelled by court order; iii) Is a debtor in bankruptcy; or iv) Is not an individual, a trust, or an estate, and the partner willfully dissolved or terminated. RUPA 602(b).

Takings Clause Property Interest

For a person to challenge a governmental action as an unconstitutional taking, the person must have a property interest. When a person does not have an interest in the property that the government takes, the Takings Clause does not apply.

Will Formalities

For a will to be admissible to probate, the testator must meet the formal execution requirements of the applicable jurisdiction's statute of wills (i.e., that jurisdiction's requirements for the execution of a proper will). Although a will is usually contemplated to dispose of property, it does not necessarily have to do so. The requirements may vary depending on whether the will is in a traditional (i.e., witnessed) form or a holographic (i.e., handwritten) form. At a minimum, most jurisdictions require a signed writing that has been witnessed for traditional attested wills. A will requires a writing that the testator signs with present testamentary intent in the joint presence of two witnesses, that both witnesses understand the significance of the testator's act, and that the will has no legal effect until after the testator's death.

Liability of a purported partner

For liability as a purported partner to be imposed, the following elements must be established: i) There must be a representation—orally, in writing, or implied by conduct—that a person is a partner in an actual or purported partnership; ii) The purported partner must make or consent to the representation; iii) A third party must have reasonably relied on the representation; and iv) The third party must have suffered damages as a result of that reliance. RUPA 308(a).

Voluntary searches

For permission to constitute consent, the permission must be given voluntarily. Permission given under threats of harm or compulsion does not constitute consent. In determining whether a person's response constitutes consent, courts evaluate the totality of the circumstances in which the response is made.

Board of Directors quorum

For the board of directors' acts at a meeting to be valid, a quorum of directors must be present at the meeting. RMBCA § 8.24(a). A majority of all directors in office constitutes a quorum, unless a higher or lower number is required by the articles of incorporation or bylaws. RMBCA §8.24. Unlike a shareholder, a director must be present at the time that the vote is taken in order to be counted for quorum purposes. RMBCA §8.24. Presence includes appearances made using communications equipment that allows all persons participating in the meeting to hear and speak to one another.

Due process - less restrictive means

For the law to be the least restrictive means to achieve the government's interest, there cannot be a way to achieve the same interest that is less restrictive of the right at issue. A law will not fail simply because there are other methods of achieving the goal that are equally or more restrictive. Under strict scrutiny, the law should be neither over-inclusive (reaching more people or conduct than is necessary) nor under-inclusive (not reaching all of the people or conduct intended).

Third Party knowledge of partner's lack of actual authority

For the partnership to escape liability, the third party generally must possess actual knowledge of the partner's lack of actual authority. An exception exists when the partnership has notified the third party in writing of the partner's lack of authority and the third party is aware of the notification or the notification is delivered to the third party's place of business or other place for receiving communications. RUPA 102(a), (d). In addition, with respect to the transfer of real estate, a third party is regarded as knowing a restriction on a partner's authority contained in a properly filed statement of authority.

Partnership person

For the purpose of a partnership, RUPA defines a "person" as an individual or legal entity, such as a corporation, limited liability company (LLC), trust, estate, governmental entity, or partnership. RUPA 101(10). The person must have the capacity to contract. The persons involved in the partnership are partners.

Authentication of business records exception

For the record to be admissible under the business records hearsay exception, the custodian of the record or other qualified witness may testify that the above requirements have been met. Alternatively, a record may be self-authenticated if properly certified (see § IV.A.2.e. Self-authenticating documents, supra). Fed. R. Evid. 803(6)(D).

Due process - forfeitures

Forfeiture is an involuntary relinquishment of property that the government alleges is connected to criminal activity. Generally, the government is required to provide the owner with notice and a hearing prior to seizure of real property. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). However, the government does not need to provide notice prior to the seizure of personal property. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974).

Forgery

Forgery is the: i) Making; ii) Of a false writing; iii) With apparent legal significance; and iv) With the intent to defraud (i.e., make wrongful use of the forged document).

Hearsay Exception - Statement Against Party That Caused Declarant's Unavailability

Formerly known as the "forfeiture against wrongdoing" exception, a statement offered against a party that wrongfully caused the declarant's unavailability is not excluded as hearsay. Under this exception, the wrongful party forfeits the right to object to the admission of the declarant's statement as hearsay. The wrongdoing, which need not be criminal, may be accomplished by a deliberate act or by acquiescing to another's act, but must be done with the intent of preventing the witness from testifying. This exception applies to all parties, including the government. Fed. R. Evid. 804(b)(6).

Equitable Adoption issue

Foster children and stepchildren have no right to inherit from their foster parents or stepparents. However, foster parents and stepparents are treated as adoptive parents for purposes of inheritance if: i) The relationship began during the child's minority and continued throughout her life; and ii) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the child but for a legal barrier.

Fourth Amendment Standing

Fourth Amendment rights are personal and may not be asserted vicariously. A defendant cannot successfully challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures unless the defendant himself has been seized or he has a reasonable expectation of privacy with regard to the place searched or the item seized. It is not enough that the introduction as evidence of an item seized may incriminate the defendant.

Fraud in the will execution

Fraud in the execution (or "fraud in the factum") is fraud as to the very nature of the instrument or its contents.

Freedom of Association

Freedom of association protects the right to form or participate in any group, gathering, club, or organization virtually without restriction, although the right is not absolute. An infringement upon this right may be justified by a compelling state interest. See, e.g., Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987) (discrimination against women was not in furtherance of or necessary for any of the expressive activity undertaken by the organization); but see Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (requiring the Boy Scouts to accept leaders who acted in a manner contrary to Boy Scout principles would unduly intrude upon the Boy Scouts' expressive associational rights).

Full faith and credit out-of-state judgments

Full faith and credit requires that out-of-state judgments be given in-state effect. Baker v. General Motors Corp., 522 U.S. 222 (1998). However, to be given full faith and credit, a decision must meet three requirements: i) The court that rendered the judgment must have had jurisdiction over the parties and the subject matter; ii) The judgment must have been on the merits rather than on a procedural issue; and iii) The judgment must be final.

General Intent Crimes

General intent crimes require only the intent to perform an act that is unlawful. Examples include battery, rape, kidnapping, and false imprisonment. Motive is not the same as intent. The motive is the reason or explanation for the crime and is immaterial to the substantive criminal offense.

Voting and ownership issues

Generally, a corporation maintains a list of shareholders who are entitled to vote (i.e., record owners). RMBCA § 7.20(a). A beneficial owner is not entitled to vote at a meeting of shareholders. A person who is not a record owner may nevertheless be entitled to vote. For example, a beneficial owner of the stock may compel the record owner to recognize the beneficial owner's right to vote. See RMBCA § 7.23. Similarly, a guardian for an incompetent or a personal representative of a decedent's estate may compel the corporation to allow her to vote in lieu of the record owner. Voting rights issues may also arise when stock is jointly held.

Plea and Defendant's rights

Generally, a defendant, by entering a guilty plea, waives his constitutional rights, such as the right to a trial, the privilege against self-incrimination, and the right to confront his accusers. However, a defendant may challenge a guilty plea on the due?process grounds that it was not a knowing and voluntary waiver of such rights. Boykin v. Alabama, 395 U.S. 238 (1969). In addition, a guilty plea does not constitute a waiver of a double jeopardy challenge unless the waiver is agreed to in the plea agreement. Menna v. New York, 423 U.S. 61 (1975). A defendant may also attack a guilty plea that is due to ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52 (1985). (Note: A defendant may also challenge a guilty plea on the grounds that the court lacked jurisdiction. Menna v. New York, supra.)

Regulatory taking

Generally, a governmental regulation that adversely affects a person's property interest is not a taking, but it is possible for a regulation to rise to the level of a taking. In determining whether a regulation creates a taking, the following factors are considered: i) The economic impact of the regulation on the property owner; ii) The extent to which the regulation interferes with the owner's reasonable, investment-backed expectations regarding use of the property; and iii) The character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner's essential attributes of property ownership, such as the right to exclude others from the property. Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978).

Parental Standing

Generally, a parent has standing to bring an action on behalf of the parent's minor child. However, after a divorce, the right to bring such an action may be limited to only one of the child's parents. Moreover, when the right to bring such an action is based on family-law rights that are in dispute, the federal courts should not entertain an action if prosecution of the lawsuit may have an adverse effect on the child. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (noncustodial parent with joint legal custody could not challenge school policy on behalf of his daughter when the custodial parent opposed the action).

Rule 10b-5 - damages

Generally, a plaintiff is entitled to recoup his "out-of-pocket" loss, which is the difference between the stock's value at the time of the fraud and the price that the plaintiff paid or received for the stock. In determining the stock's value at the time of the fraud, the value cannot exceed the mean average market price of the stock during the 90-day period after disclosure of such fraud. Securities Exchange Act Rule 21D(e). Punitive damages are not allowed.

Right to attack truthfulness of search affidavit

Generally, a search warrant that is valid on its face may not be attacked by a defendant as lacking in probable cause. A defendant can challenge a facially valid warrant only when the defendant can establish, by a preponderance of the evidence, that: i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and ii) The false statements were necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154 (1978).

Corporate records subject to inspection

Generally, a shareholder can inspect any corporate records, but the inspection may be limited to specified records, such as excerpts from the minutes of a board meeting. RMBCA § 16.02(b). Note that a proper purpose is not required for a shareholder to inspect minutes of a shareholder's meeting.

Sale of securities

Generally, a shareholder is free to sell his stock to anyone at any time or price. Such freedom is subject to two significant restrictions: limitations imposed on shareholders of closely held corporations and penalties imposed on transactions that violate federal securities law.

Partnership - public holding out

It is not a defense that the purported partner was unaware that he had been held out as a partner to the specific third party in question if the representation was made in a public manner. RUPA 308(a).

Third party consent to search of property of defendant

Generally, a third party does not have the authority to consent to a search of property owned or occupied by the defendant. The defendant can generally suppress evidence seized during such a search unless (i) an agency relationship exists between the third party and the defendant that gives to the third party the right to consent on behalf of the defendant, or (ii)the defendant otherwise gives the third party such rights with respect to the property that the defendant assumes the risk that the third party would allow the property to be searched (e.g., a shared duffle bag). Frazier v. Cupp, 394 U.S. 731, 740 (1969).

Consent to search property of a third party

Generally, a third party has the authority to consent to a search of property that she owns or occupies. As such, the defendant cannot suppress evidence seized during such a search on the grounds that he (the defendant) did not consent to the search.

Will Contest - Period of Limitations

Generally, a will contest must be filed within six months after the will is admitted to probate. Proper notice should also be given to all heirs and legatees under the will, as well as to creditors of the estate. Will contests must be made within the specified period after probate is opened, or the claims are barred.

Board of Directors voting agreements

Generally, an agreement between directors as to how to vote (i.e., a pooling agreement) is unenforceable. Each director is expected to exercise independent judgment. A director also may not vote by proxy.

Rule 10b-5 - opinions and predictions

Generally, an opinion or a prediction is not false merely because it does not purport to be factual. However, such a statement may be fraudulent if the defendant made the statement without a reasonable basis or did not make the statement in good faith. See Securities Exchange Act Rule3b-6.

Inter vivos trust - parol evidence rule

Generally, evidence outside of the written agreement is permitted to show the settlor's intent only if the written agreement is ambiguous on its face. A few states allow the introduction of parol evidence even if the writing is unambiguous.

Purported Partner/Partner by Estoppel

Generally, if a partnership does not exist, a person cannot be liable to a third party as a partner. RUPA 308(e). However, even though a partnership does not exist, a person may, under circumstances enumerated below, be treated as a partner of a purported partnership. Similarly, there are situations when someone who is not a partner of an established partnership may still be treated as one. In either case, the person is characterized as a purported partner (or a partner by estoppel).

Privilege and Presence of Third Party

Generally, if the communication is overheard by a third party, the privilege is destroyed. However, the presence of the third party does not destroy the privilege if: i) The first two parties do not know that the third party is present (e.g., an unknown eavesdropper); or ii) The third party is necessary to assist in the communication (e.g., a translator).

Trust - allocating principal and income

Generally, life beneficiaries are entitled to the trust income, and remaindermen are entitled to the trust principal. The beneficiary of trust principal is not entitled to trust principal until termination of all preceding estates. The remainder beneficiary has no immediate right to the possession and enjoyment of any trust property. The remainder beneficiary must await the termination of the trust to receive any trust property. All assets received by a trustee must be allocated to either income or principal. The allocation must be balanced so as to treat present and future trust beneficiaries fairly, unless a different treatment is authorized by the trust instrument.

LLC Duties

Generally, members owe each other and managers (if any) a duty of loyalty and a duty of care. The operating agreement may amend those duties so long as the amendment is not "manifestly unreasonable." The duty of loyalty of a member in a member-managed LLC includes the duties to account to the company for any benefit derived by the member related to the company's activities or property, to refrain from dealing with the company on behalf of one having an adverse interest in the company, and to refrain from competing with the company. See ULLCA § 409 (b). A member's duty of care is subject to the business judgment rule; it requires the member to act with the care that a person in a like position would reasonably exercise under similar circumstances and in a manner the member reasonably believes to be in the best interests of the company. See ULLCA § 409 (c). Though managers (or members in a member-managed LLC) owe a duty of care to the LLC, they are not liable for simple negligence. The duty of care consists of refraining from engaging in grossly negligent conduct or reckless conduct, intentional misconduct, or a knowing violation of law. However, some state statutes reject the "gross negligence" standard and impose an ordinary negligence standard when determining breaches of a duty of care. In these states, the business judgment rule may apply to protect LLC managers from liability when decisions are made in good faith. ULLCA § 409(c).

Shareholders with inspection rights

Generally, not only a shareholder of record but also a beneficial owner of the shares enjoys inspection rights. RMBCA § 16.02. Some states restrict access to corporate records to shareholders who have owned stock for at least a limited amount of time and/or own a minimum amount of stock.

Supremacy Clause

It is possible (and common) for the federal and state governments to legislate in the same area. When this happens, the Supremacy Clause (Article VI, paragraph 2) provides that federal law supersedes conflicting state law (see §VIII. Federal Preemption of State Law, infra).

Due process - property ownership and voting

Generally, property ownership is not a valid ground upon which to restrict the right to vote. Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969) (restriction of the right to vote on school board members to property owners or parents of school-age children struck down). A limited exception exists for elections involving special-purpose entities, such as a water-storage district. Ball v. James, 451 U.S. 355 (1981).

Establishment Clause and Public School Activities

Generally, religious activities conducted in public schools violate the Establishment Clause. The following practices have been held invalid as clearly promoting religion: i) Prayer and Bible reading, Engel v. Vitale, 370 U.S. 421 (1962); ii) A designated period of silence for "meditation or voluntary prayer," Wallace v. Jaffree, 472 U.S. 38 (1985); iii) Nondenominational prayer led by a cleric at graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992); but see Town of Greece v. Galloway, 572 U.S. ___, 134 S. Ct. 1811 (2014) (prayer before sessions of town council did not violate Establishment Clause due to tradition of such prayers and lack of coercion with regard to participation by nonbelievers); iv) Posting the Ten Commandments on public-school classroom walls, Stone v. Graham, 449 U.S. 39 (1980); and v) Prohibiting the teaching of Darwinism (i.e., human biological evolution), or mandating that such teaching be accompanied by instruction regarding "creation science," Edward v. Aguillard, 482 U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968).

Shareholder management agreements

Generally, shareholders may agree to alter the way in which a corporation is managed even though the agreement is inconsistent with statutory provisions. Among the matters on which shareholders may agree are: i) Elimination of the board of directors or restrictions on the discretion or powers of the board of directors; ii) Authorization or making of distributions; iii) Determination of who is a member of the board of directors, the manner of selection or removal of directors, and the terms of office of directors; iv) The exercise or division of voting power by or between the shareholders and directors or by or among any of them, including director proxies; v) A transfer to one or more shareholders or other persons all or part of the authority to exercise corporate powers or to manage the business and affairs of the corporation; and vi) The manner or means by which the exercise of corporate powers or the management of the business and affairs of the corporation is affected. RMBCA § 7.32(a).

Fifth Amendment and Diaries

Generally, the government may not compel production of a diary. The contents of a diary are similar to oral testimony, and as such are considered testimonial in nature. Because one cannot be compelled to testify against himself, the government may not compel production of documents that are similarly testimonial in nature. See, e.g., Schmerber v. California, 384 U.S. 757 (1966). Note, however, that if the diary's production is not compelled, e.g., it is found incident to a lawful arrest, its contents likely are admissible (assuming the entries were made voluntarily).

Limitations to equitable adoption

Generally, under equitable adoption, a child can inherit from, but not through, the equitable adoptive parent. Additionally, the equitable adoptive parents cannot inherit from or through the child. Unlike a true adoption, the parent-child relationship and the inheritance rights between the child and the natural parents are not affected.

Abatement

Gifts by will are abated (i.e., reduced) when the assets of the estate are insufficient to pay all debts and legacies. The testator may indicate his intended order of abatement, but if he fails to do so, the law prescribes an order. If not otherwise specified in the will, gifts are abated in the following order: i) Intestate property; ii) Residuary bequests; iii) General bequests; and iv) Specific bequests. Unif. Probate Code § 3-902. Demonstrative legacies are treated as specific legacies for abatement purposes to the extent that they can be satisfied, and otherwise as general legacies. Within each classification, abatement is pro rata.

Export tax prohibition

Goods exported to foreign countries may not be taxed by Congress. Article I, Section 9. Under this Export Taxation Clause, a tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited. United States v. International Business Machines Corp., 517 U.S. 843 (1996) (tax on insurance premiums paid to foreign insurers of goods being exported).

Holiday Displays

Government holiday displays will generally be upheld unless a reasonable observer would conclude that the display is an endorsement of religion. The context of the display is key—a nativity scene in a courthouse under a banner reading "Gloria in Excelsis Deo" was struck down as endorsing religion, but a nearby outdoor display of a Christmas tree, Chanukah menorah, and other seasonal symbols was upheld as mere recognition that Christmas and Chanukah are both parts of a highly secularized winter holiday season. County of Allegheny v. ACLU, 492 U.S. 573 (1989).

Financial aid to religious institutions

Governmental financial assistance to religious institutions is permitted if the aid is secular in nature, used only for secular purposes, and, when the aid is distributed among secular and religious institutions, the distribution criteria must be religiously neutral. Mitchell v. Helms, 530 U.S. 793 (2000) (elementary and secondary school); Tilton v. Richardson, 403 U.S. 672 (1971) (college); Bradfield v. Roberts, 175 U.S. 291 (1899) (hospital). Aid in the form of secular textbooks, computers, standardized tests, bus transportation, school lunches, and sign language interpreters for deaf students has been upheld. While parochial elementary and secondary schools were at one time considered to be so pervasively sectarian that direct aid to them was not permitted, that is no longer the case. Mitchell v. Helms, supra. In applying the Lemon test, the third element (no excessive governmental entanglement) is not a separate requirement, but instead is one factor to be considered in ascertaining whether the second element (no advancement or inhibition of religion) has been met. Agostini v. Felton 521 U.S. 203, 233 (1997).

Speech and personal property

Governmental regulation of speech on a person's own private property will rarely be upheld, particularly content-based regulations. While the government has some limited powers to regulate speech on private property, outright bans on certain types of speech, such as signs in a person's yard or window, are impermissible. City of Ladue v. Gilleo, 512 U.S. 43 (1994) (statute banning all residential signs in order to fight "visual clutter" was found unconstitutional).

Proof of Foreign Law

Historically, the laws of another state were not considered law at all but were treated as facts to be proven in court. If the law that controlled was not forum law, then the parties were required to carefully comply with the forum's rules for pleading and proving foreign law. Such rules were procedural and governed by forum law. If neither party raised the applicability of foreign law in its pleadings, then forum law would generally be applied. Most states today allow their courts to take judicial notice of other states' laws and federal laws and treat them as law rather than fact. Some states allow judicial notice of the laws of a foreign country. Others require that they be proved as fact. By federal common law, federal courts must take judicial notice of the laws of all states. Lamar v. Micou, 114 U.S. 218 (1885). Federal law requires pleading and proof of foreign country law. See Federal Rules of Civil Procedure 44.1.

Homicide

Homicide is the killing of one person by another, and includes the offenses of murder and manslaughter. At common law, homicide was divided into three categories: (i) homicide justified by law, (ii) criminal homicide, and (iii)excusable homicide. Criminal homicides were divided into three offenses: murder, voluntary manslaughter, and involuntary manslaughter. Common-law murder is the unlawful killing of another living human being with malice aforethought. Malice can be shown by any one of the following states of mind: (i)intent to kill, (ii) intent to do serious bodily injury, (iii) reckless indifference to human life (depraved-heart murder), and (iv)intent to commit a felony (felony murder). (See § II.B., Types of Homicide, infra.) Manslaughter includes two types: voluntary and involuntary. Voluntary manslaughter involves an intentional killing, and involuntary manslaughter is an unintentional killing.

Dormant Commerce Clause Rule

If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: i) Discriminate against out-of-state commerce; ii) Unduly burden interstate commerce; or iii) Regulate extraterritorial (wholly out-of-state) activity.

Same offense under Double Jeopardy

If a defendant's conduct may be prosecuted as two or more crimes, then the Blockburger test is applied to determine whether the crimes constitute the same offense for double jeopardy purposes. Under this test, each crime must require the proof of an element that the other does not in order for each to be considered as a separate offense. Blockburger v. United States, 284 U.S. 299, 304 (1932). As a consequence of Blockburger, the Double Jeopardy Clause generally bars successive prosecutions for greater and lesser included offenses. A lesser included offense is one that does not require proof of an element beyond those required by the greater offense. When jeopardy has attached with respect to a lesser included offense prior to the occurrence of an event necessary to establish the greater offense, the defendant may be subsequently tried for the greater offense.

Private Express Trust - precatory trusts

If a donor transfers property to a donee using language that expresses a hope or wish (rather than creating a legal obligation) that such property be used for the benefit of another, then the gift may be considered a precatory trust and not an outright gift. To be considered a precatory trust, the transfer must meet two requirements. First, it must contain specific instructions to a fiduciary. Second, it must be shown that, absent imposition of a trust, there would be an unnatural disposition of the donor's property because of familial relations or a history of support between the donor and the intended beneficiary.

State-to-federal recognition of judgments for diversity cases

If a federal court with diversity jurisdiction over an action issues a judgment, then a state court must give such judgment the same res judicata effect that the judgment would have been given by the courts of the state where the federal court was located. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001).

Ademption - beneficiary entitlement

If a gift is adeemed, then the beneficiary is entitled to: i) Whatever is left of the specifically devised property; ii) The balance of the purchase price owing from the purchaser of the property; iii) Any amount of condemnation award for the taking of the property, to the extent unpaid upon death; or iv) Property acquired from the foreclosure of a security interest on a specifically devised note.

Hotchpot

If a gift is treated as an advancement, the donee must allow its value to be brought into the hotchpot. The advancement is added back into the estate, and the resulting total estate is divided by the number of children taking. The advancement is then deducted from the total share of the child to whom it was given. If a child receives an inter vivos share that exceeds the hotchpot share to which each child is entitled, then that child does not take but is not required to pay back into the estate.

Inconsistent verdicts

If a jury renders a verdict that a defendant is guilty of certain offenses but not guilty of other related offenses, then the verdict is not reviewable on the grounds of inconsistency, even when the jury acquits the defendant of an offense that is a predicate offense to an offense for which the same jury finds the defendant guilty. United States v. Powell, 469 U.S. 57 (1984). This rule, which permits inconsistent verdicts, is also applicable when a defendant is convicted of an offense for which a co-defendant, who is tried at the same time, is acquitted, even though the facts would logically dictate the same verdict for each defendant. United States v. Dotterweich, 320 U.S. 277 (1943). This rule extends to bench as well as jury trials. Harris v. Rivera, 454 U.S. 339 (1981). (Note: The defendant may challenge a jury verdict on the grounds that there was insufficient evidence to establish the defendant's commission of a crime.)

Parole and Probation

If a new sentence will be imposed upon the revocation of parole, then the right to counsel is activated, and the parolee is entitled to representation to the same extent as a trial. On the other hand, if an already-imposed sentence is triggered by parole revocation, then the right to counsel is limited. The right to counsel applies only if it is necessary for a fair hearing.

Dissociated partner's post-dissociation actions

If a partner dissociates from the partnership but the partnership is not dissolved, then the dissociated partner can enter into a transaction with a third party that binds not only the dissociated partner as a partner, but also the partnership. The partnership is bound when, at the time of the transaction, the other party to the transaction (i) reasonably believes that the dissociated partner is a partner, (ii) does not have notice of the partner's dissociation, and (iii) is not deemed to have knowledge of the dissociated partner's lack of authority. Liability is limited to transactions entered into within two years of the partner's dissociation. RUPA 702, 703.

Approval for partnership merger

If a partnership is a party to the merger, then the merger must be approved by all of the partners, unless otherwise specified in the partnership agreement. If a limited partnership is a party to the merger, then the merger must be approved by either (i) the vote required by the law of the jurisdiction in which the limited partnership is organized or (ii) in the absence of a law, by all partners or by whatever number of partners is specified in the partnership agreement. RUPA 905.

Domicile by Choice

If a person has legal capacity, then the person's domicile is the location where he has chosen to establish domicile. In general, domicile will be where the person is present with the intent to remain for an unlimited time and when he abandons any prior domicile. Thus, courts will look at the person's physical presence and intent to determine a person's domicile.

Piercing the corporate veil

If a plaintiff can "pierce the corporate veil," then a corporation's existence is ignored, and the shareholders of the corporation are held personally liable. Although courts are reluctant to hold a director or an active shareholder liable for actions that are legally the responsibility of the corporation (even if the corporation has a single shareholder), they will sometimes do so if the corporation was markedly noncompliant or if holding only the corporation liable would be singularly unfair to the plaintiff.

Access to Public Facilities by Religious Groups

If a public school allows student groups or organizations to use its facilities when classes are not in session, allowing a religious organization to use those facilities does not violate the Establishment Clause. Furthermore, to prohibit such a group from using those facilities because religious topics would be discussed would violate the First Amendment guarantee of free speech. Good News Club v. Milford Central School, 533 U.S. 98 (2001); Widmar v. Vincent, 454 U.S. 263 (1981). The Court has often responded to public educational institutions' Establishment Clause concerns by focusing on the free speech rights of religious students. E.g., Rosenberger v. Univ. of Virginia, 515 U.S. 819 (1995) (state university could not refuse to pay for printing of religious student newspaper on Establishment Clause grounds when it funded nonreligious papers).

Denial of Counsel and Conviction

If a right to counsel at a trial proceeding under the Sixth Amendment is denied, the defendant's conviction should be automatically reversed, even without a specific showing of unfairness. Gideon v. Wainwright, 372 U.S. 335, 339 (1963). Automatic reversal also applies to a conviction obtained after a court has erroneously refused to permit an attorney chosen by the defendant to represent him, when that attorney is not supplied by the state. United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).

Necessary to important state interest

If a state or local regulation, on its face or in practice, is discriminatory, then the regulation may be upheld if the state or local government can establish that: i) An important local interest is being served; and ii) No other nondiscriminatory means are available to achieve that purpose. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333 (1977). Discriminatory regulation has rarely been upheld. In a few instances, a discriminatory state or local regulation that furthers an important, non-economic state interest, like health and safety, has not been struck down. Maine v. Taylor, 477 U.S. 131 (1986) (upheld a prohibition against importation into the state of out-of-state live baitfish that may pose contamination hazards to local waters).

Spendthrift Trust statutory limitation

If a trust contains a spendthrift clause, then the beneficiary's interest is not reachable in bankruptcy proceedings. Further, the Employee Retirement Income Security Act (ERISA) mandates that an employee's pension benefits cannot be reached by creditors.

Trustee liability for predecessor and successor trustees

If a trustee knew of his predecessor's breach and failed to address it or was negligent in delivering the property, then the trustee will be liable for his predecessor's breach. Successor trustees can maintain the same actions as the original trustees.

Lost Will burden of proof

If a will cannot be found, then the burden is on the proponent of the existence of a will to prove the will's existence by clear and convincing evidence. An attorney's copy of an original is sufficient, whereas testimony by an interested witness is not.

Destruction of Will - Revocation Presumption

If a will once known to exist cannot be found at the testator's death, or is found mutilated, then there is a rebuttable presumption of revocation. The presumption is inapplicable if a duplicate original is found. Extrinsic evidence is permitted to rebut the presumption. The attorney-client privilege does not apply to a lawyer's testimony concerning the contents of a will.

Hearsay Exception - Recorded Recollection

If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established: i) The record is on a matter that the witness once knew about; ii) The record was made or adopted by the witness when the matter was fresh in the witness's memory; iii) The record accurately reflects the witness's knowledge; and iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand. Under this exception, the record, if admitted, may be read into evidence, but it may be received as an exhibit only if offered by an adverse party. Fed. R. Evid. 803(5).

Complete Integration under Parol Evidence

If a written agreement is a complete integration (i.e., contains all of the terms to which the parties agreed), then the parol evidence rule is in effect, and no extrinsic evidence may be introduced.

Full Faith and Credit For Foreign Judgments and Res Judicata

If all of the Full Faith and Credit requirements are met, then the judgment is entitled to res judicata in other states as well as in the original state that decided the judgment. These effects include merger and bar.

Trustee self-dealing and conflicts of interest

If an alleged conflict of interest arises that cannot be characterized as self-dealing, then the "no further inquiry" standard is inapplicable, and the transaction is assessed under the "reasonable and in good faith" standard. The UTC provides that an investment in a corporation in which the trustee has an interest that might affect the trustee's best judgment is presumptively a breach of the duty of loyalty. The presumption of a breach can be rebutted by showing that the terms of the transaction were fair or that the transaction would have been made by an independent party. See Uniform Trust Code § 802(c).

Knowledge of the court and ineffective assistance of counsel

If an attorney representing codefendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, then the trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires automatic reversal of a subsequent conviction. Holloway v. Arkansas, 435 U.S. 475, 484 (1978). Actual conflict and prejudice are presumed under such circumstances. Unless the trial court knows or reasonably should know that a conflict exists, however, the court is not required to inquire about multiple representations. Cuyler v. Sullivan, 446 U.S. 335, 347-348 (1980). Actual conflict (rather than potential conflict) is required to be shown on appeal if the issue of separate trials was not brought up during the trial, and the defendant must show that the conflict adversely affected counsel's performance. Mickens v. Taylor, 535 U.S. 162, 173 (2002).

Survival requirements under intestacy

If an heir of a decedent fails to meet the survival requirement, then the heir is considered to have predeceased the decedent and does not take under the laws of intestacy. The common-law requirement was that an heir must be proved to have survived the decedent by a preponderance of the evidence.

Due Process - notice and hearing

If an individual's protected interest is threatened by governmental action, the next step is to determine what type of process is due. The Court considers three factors in determining the amount of process that is due: i) The private interest affected by the governmental action; ii) The risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and iii) The burden (fiscal and administrative cost) involved in providing the additional process. Mathews v. Eldridge, 424 U.S. 319 (1976). The greater the importance of the threatened interest, the greater the likelihood that the Court will require extensive procedural safeguards prior to the termination of the interest. Generally, the person whose interest is being deprived is entitled to notice of the government's action by an unbiased decision maker and an opportunity to be heard, although the hearing need not necessarily occur before the termination of the interest.

Absence of Preemption

If federal law does not preempt state law, a state is free to enact legislation regarding the same issue. Colorado Anti-Discrimination Comm'n. v. Continental Air Lines, Inc., 372 U.S. 714 (1963) (state statute prohibiting racial discrimination valid despite the existence of identical federal law). If there has not been federal preemption in a given area, a state is free to set more stringent standards than those imposed by the federal government. In addition, a state may recognize individual rights that exceed those granted by the federal constitution or federal statutes. Pruneyard Shopping Ctr. v. Robbins, 447 U.S. 74 (1980) (California's constitutional grant of greater free speech rights than the federal constitution confers upheld).

Workers' Compensation recovery in more than one state

If more than one state is involved and has a legitimate interest, then each state's workers'-compensation statutes should be compared before determining which law governs. For example, if one state bars an independent tort action or limits such an action under its workers'-compensation statute (see discussion below) while another does not, then that can significantly affect the decision of in which state the worker will want to file a compensation claim. A subsequent workers'-compensation award in another state is barred only if there is "unmistakable language by a state legislature or judiciary" barring such recovery. Industrial Commission of Wis. v. McCartin, 330 U.S. 622 (1947). Amounts paid under a prior award must be credited against any subsequent recovery in another state to avoid a double recovery.

Ancestors and remote collaterals

If no surviving spouse or issue exist to succeed to the decedent's estate, then the property may be distributed to the decedent's ancestors (e.g., parents, grandparents, great-grandparents) and more remote collateral relatives (i.e., those related to the decedent through a common ancestor, such as siblings, cousins, aunts, and uncles).

Search of car trunk

If police have probable cause to search the trunk, not just a container placed in the trunk, then they can search the entire trunk and every container in the trunk, even if locked.

Articles Amended post-stock issuance

If stock has been issued, then corporations generally must follow a two-step approval process: i) The board of directors must adopt the amendment to the articles of incorporation; and ii) The board must submit the amendment to the shareholders for their approval by majority vote. RMBCA § 10.03(a)-(b).

Shareholder management agreement effect on liability

If the agreement limits the discretion or powers of the board of directors, then the directors are relieved of liability for acts or omissions to the extent of the limitation, and the persons in whom such discretion or powers are vested are subject to liability. The existence of the agreement is not a ground for imposing personal liability on shareholders for corporate acts or debts, even though the shareholders, by virtue of the agreement, fail to observe the corporate formalities. RMBCA § 7.32(e)-(f).

Aggressor's right to use self-defense

It is possible for an initial aggressor to gain the right to act in self-defense in two circumstances: (i) an aggressor using nondeadly force is met with deadly force, or (ii) the aggressor has, in good faith, completely withdrawn from the altercation and has communicated that fact to the victim.

Criminal Defense - Necessity

If the forces of nature (e.g., storm, fire) cause the defendant to commit what would otherwise be a crime, the defendant may be justified in doing so based upon necessity. The law prefers that the defendant, when faced with two evils, avoids the greater evil by choosing the lesser evil, e.g., the destruction of property to prevent the spread of a fire. The defendant is not entitled to assert necessity if he set the natural forces in motion (e.g., set the fire) or if there is a reasonably apparent noncriminal alternative. In addition, economic necessity does not justify theft. For example, an unemployed worker may not steal food from the grocery store. Necessity is a result of natural forces; duress results from human actions. Note, though, that the MPC does not explicitly limit the defense of necessity to natural forces.

Full Faith and Credit for Foreign Judgments and Bar

If the judgment is final and the plaintiff won, then a merger of the plaintiff's cause of action into the plaintiff's judgment occurs. As a result, the defendant is prohibited from relitigating on the merits of the case.

Timeliness and class actions

If the named plaintiff's claim in a certified class action is resolved and becomes moot, that fact does not render the entire class action moot. United States Parole Comm'n. v. Geraghty, 445 U.S. 388 (1980).

Solicitation - Other crimes

If the other person does agree, then the solicitor and the person solicited may also become co-conspirators.

Partnership restrictions on transfer

If the partnership agreement contains a restriction that prohibits the transfer of a partnership interest, then a transfer in violation of this restriction is ineffective as to a transferee who has notice of the restriction. RUPA 503(f).

Partnership property in which partnership interest is not indicated

If the partnership interest in property was not indicated in the instrument through which the partnership acquired the property, the partnership may recover property transferred by a partner without authority, but only from a transferee who was aware that the property belonged to the partnership and that the partner executing the transfer did so without authority. RUPA302(b)(2).

Partnership property in which partnership interest is indicated

If the partnership's interest in the property was indicated in the instrument through which the partnership acquired the property, the partnership may recover the property from any initial transferee if the property was transferred by a partner without authority.

Defamation, Public Concern, and Free Speech

If the plaintiff is a private figure but the defamatory statement involves a matter of public concern, then the standard is lower, but the plaintiff still must establish negligence with respect to the falsity of the statement. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Warrantless entry - hot pursuit

If the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him, then they have the right to enter a private building during the pursuit, to search that building for the person or his weapons while they are present on the premises, and to seize evidence found there, even though the material found is "mere" evidence and neither fruits nor instrumentalities of a crime. No such exigency exists in pursuing someone suspected of a nonjailable traffic offense; the hot-pursuit exception is inapplicable in that instance. Welsh v. Wisconsin, 466 U.S. 740 (1984).

Impeachment and Sixth Amendment

If the police initiate a conversation with an accused individual who has requested counsel, any incriminating statements made by the defendant may still be used for impeachment purposes, despite the fact that the improper police conduct precludes admission of the statements as part of the prosecution's case in chief. Michigan v. Harvey, 494 U.S. 344, 350-351 (1990).

Search of jointly controlled property when defendant is not present

If the property to be searched is under the joint control of the defendant and a third party, and the defendant is not present at the time of the search, then the third party has authority to consent. The third party has actual authority when she has joint access or control for most purposes. U.S. v. Matlock, 415 U.S. 164, 170-171 (1974). In addition, the third party's consent may be valid even though she lacks actual authority if the police reasonably believe that she has such authority. Illinois v. Rodriguez, 497 U.S. 177, 184 (1990).

Mens rea not stated

If the requisite mens rea is not stated in a criminal statute, it is established if the defendant acted at least recklessly. If the mens rea does not state the culpable mind applicable to all material elements of the crime, then the mens rea applicable to one material element is applicable to all material elements, unless a contrary purpose plainly appears. MPC § 2.02(3),(4).

Distribution and discretionary trust

If the trustee is given complete discretion regarding whether or not to apply payments of income or principal to the beneficiary, then a discretionary trust exists. If the trustee exercises his discretion to pay, then the beneficiary's creditors have the same rights as the beneficiary, unless a spendthrift restriction exists (discussed infra at § IV.F.). If the discretion to pay is not exercised, then the beneficiary's interest cannot be reached by his creditors. The beneficiary of a fully discretionary trust lacks standing to challenge the actions or inactions of the trustee unless there is a clear abuse of discretion.

Homicide Actual Cause

If the victim would not have died but for the defendant's act, then the defendant's act is the actual cause (i.e., cause-in-fact) of the death. When the defendant sets in motion forces that led to the death of the victim, the defendant is the actual cause of the victim's death.

Defense to Full Faith and Credit of Foreign Judgments - Inconsistency

If there are inconsistent judgments between the same parties with regard to the same cause of action, then courts resolve this problem by recognizing the last judgment that was rendered.

Express Choice of Law of the Parties

If there is an express choice-of-law provision in the contract, then that law will govern unless: i) It is contrary to public policy; ii) There is no reasonable basis for the parties' choice; or iii) There was fraud or mistake and true consent was not given. If there is no express choice-of-law provision in the contract, then the forum court will apply the vested-rights approach, the most-significant-relationship approach, or the governmental-interest approach, depending on the choice-of-law rules applicable in the forum state.

Ancestors and UPC Approach

If there is no surviving spouse or descendant, then the estate passes in the following order to the individuals designated below who survive the decedent: i) To the decedent's parents equally if both survive, or to the surviving parent; ii) If there is no surviving descendant or parent, then to the descendants of the decedent's parents; iii) If there is no surviving descendant, parent, or descendant of a parent, then the estate passes to the decedent's maternal and paternal grandparent, one-half to each, or to the descendants of the decedent's maternal and paternal grandparents if the grandparents are deceased; iv) If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, then the entire estate passes to the decedent's nearest maternal and paternal relative; and v) If there are no surviving relatives, then the estate escheats to the state. A parent cannot inherit through a child if her parental rights have been terminated or if the child dies before the age of 18 and there is clear and convincing evidence that the parental rights of the parent could have been terminated under state law. Unif. Probate Code § 2-114.

Lost Will vs. Destruction

If there is proof that a will has been destroyed, but there is no evidence that the testator intended to revoke the will, then the will can still be probated if there is clear and convincing evidence of the lack of intent to revoke and of the contents of the will.

Manslaughter and "cooling off"

If there was sufficient time between the provocation and the killing for a reasonable person to cool off, then murder is not mitigated to manslaughter. If there was sufficient time to cool off for a reasonable person even though the defendant himself did not regain self-control, the murder is not mitigated to manslaughter. Second provocation: Even when the defendant has "cooled off," a second encounter with the victim may give rise to another situation in which the defendant acts in the "heat of passion."

Legislation impairing public contracts

Impairment by the state of a public contract (one to which the state or local government is a party) is subject to essentially the same "reasonable and necessary" test as private contracts, but with a somewhat stricter application. The state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances. U.S. Trust Co. v. New Jersey, 413 U.S. 1 (1977). Note that there is no substantial impairment if the state reserved—by statute, law, or in the contract itself—the right to revoke, alter, or amend.

Criminal Defense - Imperfect right of self-defense

Imperfect self-defense occurs when the person claiming self-defense unjustifiably kills the attacker. The purpose of the rule is to reduce the charge from murder to voluntary manslaughter. The rule, adopted in most states, is applied when the defendant cannot claim perfect self-defense for some reason. For example, a defendant honestly but unreasonably believes that deadly force is required to prevent death or serious bodily injury.

Attempt - impossibility

Impossibility is not a defense to attempt if the crime attempted is factually impossible to commit due to circumstances unknown to the defendant. If, however, the act intended is not a crime (i.e., a legal impossibility), then the defendant is not guilty of attempt. In such a case, even when statutes purport to have done away with the impossibility defense, there is always a provision that allows for legal impossibility.

Effect of imprisonment under Miranda

Imprisonment alone does not necessarily create a custodial situation within the meaning of Miranda. The questioning of a prisoner, who is removed from the general prison population, about events that took place outside the prison is not categorically "custodial" for Miranda purposes. A standard, objective "totality of circumstances" analysis applies when an inmate is interviewed, including consideration of the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. Howes v. Fields, 565 U.S. ____, 132 S. Ct. 1181 (2012) (holding that defendant was not in custody for purposes of Miranda during seven-hour interrogation that lasted well into the night, because he was told at the outset of interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted).

Exceptions to Rape Shield in Civil cases

In a civil case, evidence offered to prove a victim's sexual behavior or predisposition is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of a victim's reputation is admissible only when it has been placed in controversy by the victim. Fed. R. Evid. 412(b)(2). The restriction on evidence of a victim's sexual behavior or predisposition applies only when the party against whom the evidence is offered can be characterized as a victim of sexual misconduct. For example, a plaintiff in a defamation action based on a statement about the plaintiff's sexual behavior is not a victim of sexual misconduct. By contrast, a plaintiff who brings a Title VII sexual harassment action can be characterized as a victim of sexual misconduct. Fed. R. Evid. 412, Notes of Advisory Committee (1994).

Contempt and jury trial

In a civil contempt case, there is no jury trial requirement if the witness can avoid the punishment by complying with the court order. In a criminal contempt case that has no statutorily authorized punishment, the right to a jury trial is determined by the actual penalty imposed. Thus, a sentence of over six months would trigger the right to a jury trial. However, an alleged contemnor is not entitled to a jury trial simply because a strong possibility exists that upon conviction he will face a substantial term of imprisonment regardless of the punishment actually imposed. Moreover, if a sentence is imposed for contempt and it is more than six months, an appellate court may reduce the sentence to six months or less to protect the conviction against constitutional attack for lack of a jury. There is no right to a jury trial when the sentence imposed is probation, regardless of the length of the probation, at least when imprisonment following revocation of probation does not exceed six months.

Plea Negotiation Admissibility

In a civil or criminal case, evidence of the following is generally not admissible against the defendant who made the plea or participated in the plea discussions: i) Withdrawn guilty pleas; ii) Pleas of no contest (i.e., a nolo contendere plea); iii) Statements made while negotiating a plea with a prosecutor (e.g., an offer to plead guilty); and iv) Statements made during a plea proceeding (e.g., a Rule 11 proceeding under the Federal Rules of Criminal Procedure). Fed. R. Evid. 410(a).

Defendant's Sexual Conduct as Evidence

In a criminal case in which a defendant is accused of sexual assault, attempted sexual assault, or conspiracy to commit sexual assault, evidence that the defendant committed any other sexual assault is admissible to prove any relevant matter. Similarly, in a criminal case in which a defendant is accused of child molestation, evidence that the defendant committed any other child molestation is admissible to prove any relevant matter. A similar rule applies in civil cases alleging sexual assault or child molestation. Fed. R. Evid. 413-15. Propensity evidence: Unlike Federal Rule 404(b), which applies to other crimes or bad acts committed by a defendant, these rules permit the use of a defendant's previous commission of a sexual assault or child molestation as evidence of the defendant's propensity to commit the charged sexual assault or child molestation. Consequently, for example, a defendant's prior conviction for rape can be used as evidence of the defendant's propensity to commit the charged rape, but a defendant's prior conviction for robbery cannot be used as evidence of the defendant's propensity to commit the charged robbery. The court does have discretion to exclude such evidence under Rule 403 when the probative value is substantially outweighed by the danger of unfair prejudice. United States v. Kelly, 510 F.3d 433 (4th Cir. 2007); Johnson v. Elk Lake Sch. Dist., 283 F.3d 138 (3d Cir. 2002).

Exceptions to Rape Shield in Criminal Cases

In a criminal case involving sexual misconduct, evidence of specific instances of a victim's sexual behavior is admissible to prove that someone other than the defendant was the source of semen, injury, or other physical evidence. In addition, evidence of sexual behavior with the person accused of sexual misconduct is admissible if offered by the defendant to prove consent or if offered by the prosecution. Fed. R. Evid. 412(b)(1). Note that, in contrast with the general preference under the Federal Rules for reputation or opinion testimony over evidence of specific acts, in criminal cases involving sexual misconduct, reputation or opinion evidence of a victim's sexual behavior or predisposition is not admissible. Finally, any evidence whose exclusion would violate the defendant's constitutional rights is admissible under Rule 412. For example, under the Sixth Amendment Confrontation Clause, a defendant in a rape case may be able to cross-examine an alleged victim who testified that she lived with her mother about her cohabitation with another man in order to show that the alleged victim denied having consensual sex with the defendant in order to protect her relationship with the other man. Olden v. Kentucky, 488 U.S. 227 (1988).

Directed verdict and due process

In a criminal case, a judge may order a directed verdict only for acquittal; the power to convict is reserved to the jury.

Commenting on Failure to take the stand

In a criminal case, a prosecutor may not comment on the defendant's failure to take the stand and may not argue that the jury should draw a negative inference from the assertion of the privilege. Griffin v. California, 380 U.S. 609 (1965). In a civil case, however, it is proper for the opposing party to ask the jury to draw an adverse inference from a witness's claim of privilege.

Procedure for exceptions to rape shield

In a criminal or civil case, the party intending to offer evidence of the victim's sexual behavior or predisposition must file a motion describing the evidence and stating the purpose for its introduction. The motion must be filed at least 14 days before trial unless the court sets a different time. The motion must be served on all parties, and the victim (or the victim's guardian or representative) must be notified. The court must conduct an in camera hearing and give the victim and the parties the right to attend and to be heard. Unless the court orders otherwise, the record of the hearing is sealed. Fed. R. Evid. 412(c).

Confrontation Clause and Hearsay

In a criminal trial, the Confrontation Clause of the Sixth Amendment requires that, in order to admit an out-of-court testimonial statement of a declarant (i.e., hearsay) against a defendant: i) The declarant must be unavailable; and ii) The defendant must have had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36 (2004). Note: The Supreme Court suggested in dicta in Crawford that the Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial, since this common-law exception predates the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 56, n.6 (2004).

Shareholder derivative action

In a derivative action, a shareholder is suing on behalf of the corporation for a harm suffered by the corporation. Although the shareholder also may have suffered harm, recovery generally goes to the corporation. For example, a shareholder may bring a derivative action to force a director to disgorge a secret profit earned by the director on a transaction with the corporation.

Minority Application of Spousal Immunity

In a minority of jurisdictions, the party spouse (as opposed to the witness spouse) holds the privilege and may prevent the witness spouse from testifying, even if the witness spouse wants to testify.

Usurpation of corporate opportunity

In addition to a conflict-of-interest transaction, a director may violate his duty of loyalty by usurping a corporate opportunity rather than first offering the opportunity to the corporation. RMBCA §8.70.

Derivative action standing

In addition to being a shareholder at the time the action is filed and continuing to be a shareholder during the litigation, a plaintiff must also have been a shareholder at the time of the act or omission (or one who receives the shares through a transfer by operation of law from such a shareholder) to bring a derivative action. This is known as the "contemporaneous ownership" rule. In addition, the shareholder must fairly and adequately represent the interests of the corporation. RMBCA §7.41.

Political speakers

In addition to individuals, corporations (both nonprofit and for-profit) enjoy First Amendment protection with regard to political speech. Citizens United, supra. Similarly, a candidate for a judgeship has a First Amendment right to express his views on disputed legal or political issues. Republican Party of Minnesota v. White, 536 U.S. 765 (2002). A state law banning judicial candidates from personally soliciting campaign funds, however, does not necessarily violate the First Amendment. Williams-Yulee v. The Florida Bar, 575 U.S. ___, 135 S. Ct. 1656 (2015).

Freedom of Expression and Association

In addition to its religion clauses, the First Amendment provides that "Congress shall make no laws...abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances." These aspects of the First Amendment are applicable to the states via the Fourteenth Amendment. Freedom of expression is not absolute. While governmental regulation of the content of speech is severely constrained, governmental regulation of the time, place, and manner of speech is subject to less restriction.

Equal Protection and populations vote

In addition to requiring relative equality with respect to the weight of a person's vote, the Equal Protection Clause subjects the restriction of voting of a particular class of persons to strict scrutiny, which generally results in the invalidation of the law. Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969) (state law that restricted voting in school board election to property owners and parents with school-aged children struck down). The restriction of voting to a class of persons (e.g., landowners) and the allocation of voting weight on a basis other than personhood (e.g., the amount of land owned) has been upheld only with regard to water-district elections. Ball v. James, 451 U.S. 355 (1981); See Hadley v. Junior College Dist., supra (determination of districts for junior college trustees based on school age population violated "one person, one vote" rule). A state may draw its legislative districts on the basis of total population rather than eligible or registered voters. Evenwel v. Abbott, 578 U.S. ___, 136 S. Ct. 1120 (2016).

Curtilage

In addition to the home itself, an area immediately surrounding the home known as the "curtilage" may be covered by the "umbrella" of the home's Fourth Amendment protection. In determining whether the area is protected, the following four-factor test applies: i) The proximity of the area to the home; ii) Whether the area is included within an enclosure surrounding the home; iii) The nature of the uses to which the area is put; and iv) The steps taken by the resident to protect the area from observation by passersby. United States v. Dunn, 480 U.S. 294 (1987).

Takings Clause - Types of interests

In addition to the transfer of a fee simple interest in property, a taking may involve an easement, leasehold interest, or a lien. Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Armstrong v. United States, 364 U.S. 40 (1960); United States v. General Motors, 323 U.S. 373 (1945). A taking may involve the rights of a property owner, such as the right to control access to the property. Kaiser Aetna v. United States, 444 U.S. 164 (1980) (federal government's imposition of public-access servitude on a waterway created on private property constituted a taking).

Partnership duty of loyalty - safe harbor

In addition, the agreement may provide a safe harbor with respect to a transaction between a partner and the partnership. Under a safe harbor, a certain number or percentage of the other partners—after full disclosure of the material facts—could authorize or ratify the transaction. RUPA 103(b)(3)(ii).

Charitable trust and cy pres

In an effort to carry out the testator's intent, under the cy pres doctrine, a court may modify a charitable trust to seek an alternative charitable purpose if the original charitable purpose becomes illegal, impracticable, or impossible to perform. The court must determine the settlor's primary purpose and select a new purpose "as near as possible" to the original purpose. Because the Rule Against Perpetuities is not applicable to charitable trusts, courts are called upon to apply cy pres often. The settlor's intent controls, so if it appears that the settlor would not have wished that an alternative charitable purpose be selected, the trust property may instead be subject to a resulting trust for the benefit of the settlor's estate.

Trustee duty to maintain

In caring for real property, the trustee must take whatever steps an ordinary owner would take, including insuring, repairing, and otherwise maintaining the property.

Annulment and choice of law

In cases of annulment, the court will generally look to the jurisdiction where the ceremony took place to determine whether the law permits the annulment.

Detention Hearing

In conjunction with the defendant's initial appearance or at a separate hearing, the court may determine whether to release the defendant and any conditions upon such release. At such time, the court may set bail (see §C. Right to Bail, infra).

Political campaign expenditures

In contrast to campaign contributions, restrictions on expenditures by individuals and entities (including corporations and unions) on communications during an election campaign regarding a candidate are subject to strict scrutiny. So long as the source of the funding is disclosed, there is no legal limit to the amount that corporations and unions may spend on "electioneering communications." Citizens United v. Federal Election Comm'n, 558 U.S. 310 (2010). In addition, expenditures by a candidate on her own behalf cannot be limited. Buckley v. Valeo, supra; Davis v. Federal Election Commission, supra.

Corporate liability

One reason the corporate form is favorable is that the investors in a corporation are subject to limited liability for corporate acts, and they are only at risk to the extent of their investment. This principle of limited liability is subject to challenge, primarily with respect to shareholders of closely held corporations.

Vested-Rights Approach - Characterization

In determining where vesting occurred, the forum court will first characterize the issues in the cause of action. Initially, this involves a determination of whether the issue is substantive or procedural. If the issue is procedural, then the forum court will apply its own procedural rules. If the issue is substantive, then the court must identify the substantive area of the law involved. In general, the forum court will apply its own state law to determine whether an issue is one of tort, contract, property, domestic relations, etc. Note that in characterizing an issue in a particular way (e.g., as contract rather than tort or as substantive rather than procedural), a court may be able to avoid the application of a particular foreign law in favor of its own state's law, or vice versa.

Testimonial Statements

In determining whether a statement is testimonial, an objective analysis of the circumstances, rather than the subjective purpose of the participants, is key. A statement made during a police interrogation that had the primary purpose of ascertaining past criminal conduct is testimonial, as is a certificate of a governmental laboratory analyst that a substance was an illegal drug. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). By contrast, a statement made to police during the course of questioning with the primary purpose of enabling police to provide assistance to meet an ongoing emergency (e.g., a 911 call) is not testimonial, Davis v. Washington, 547 U.S. 813 (2006), nor is a statement made by a fatally wounded victim as to the identity of his assailant in response to police questioning, because the statement was made to assist the police in addressing an on-going emergency, Michigan v. Bryant, 562 U.S. 344 (2011).

Corporate opportunity

In determining whether the opportunity is one that must first be offered to the corporation, courts have applied the "interest or expectancy" test or the "line of business" test.

Possession of nonpublic information as use

In establishing that a person has traded on the basis of nonpublic information, a person is presumed to have traded on the basis of the information that he possessed at the time of the trade. An exception exists for trades made in accordance with a preexisting written plan. Securities Exchange Act Rule 10b-5-1.

Death penalty for felony murder

In felony-murder cases, the death penalty may not be imposed if the defendant, acting as an accomplice, did not kill, attempt to kill, or intend to kill, unless the defendant significantly participated in the commission of the felony and acted with reckless indifference to human life. Compare Enmund v. Florida, 458 U.S. 782 (1982) (death penalty not permitted) with Tison v. Arizona, 481 U.S. 137 (1987) (death penalty imposed).

LP assignment of partnership interest

In general, a partnership interest in a limited partnership is personal property that can be assigned in whole or in part. Upon assignment of the interest, the partner ceases to be a partner in the limited partnership, but the assignee generally has rights only to receive the distribution to which the assignor partner would otherwise be entitled. RULPA 701-705.

Search of business premises

In general, business premises are protected by the Fourth Amendment. G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977). However, such premises may be subjected to administrative searches, see § I.C.4.g., Administrative searches, infra.

Marriage and Choice of Law

In general, marriages are valid where they took place and are recognized in all other states. This also holds true for voided marriages. If a marriage violates a particularly strong public policy of the domicile of either party, however, it will be invalid. Such policies can include bigamy and incest.

Public offerings of stock

In general, registration is required only for public offerings of stocks or other securities that are considered public offerings. Offerings that are considered private, called "private placements," are exempt from the registration requirements. Private placements include stock sold by a corporation to institutional investors, sophisticated investors, and companies with annual sales of less than $1 million.

Authorization to issue stock

In general, the issuance of stock must be authorized by the board of directors. RMBCA §6.21(b). Many states also permit the shareholders to authorize the issuance of stock if the articles of incorporation so provide. RMBCA §6.21(a).

Location where the contract is executed under Vested-Rights Approach

In general, the place of execution governs issues regarding the validity of the contract, including the capacity to contract, the formalities of the contract (e.g., whether there must be a writing and whether it must be signed), and the consideration for the contract. Generally, issues regarding whether there are defenses to the formation of the contract are governed by the law of the place of the execution of the contract. This can include defenses such as misrepresentation, fraud, and illegality. The interpretation of a contract is governed by the law of the place of execution.

Abandonment of spouse under intestacy

In many states, if one spouse abandons the other for a prescribed period, then the marital relationship is terminated, and the two are no longer considered spouses.

Surviving Spouse right to set aside transfers

In many states, the surviving spouse can set aside inter vivos transfers by the decedent made during the marriage, without spousal consent, if the decedent initiated the transfer within one year of his death, retained an interest in the property transferred, or received less than adequate consideration.

Settlor's intent

In most states, a settlor must expressly reserve the right to modify or terminate a trust in order to be granted such powers. In the absence of such a reservation, modification or termination can occur only with the consent of all beneficiaries and if the proposed change will not interfere with a primary purpose of the trust. Although it is possible for a court to modify or terminate a trust over the objections of the settlor, a modification or termination is much more likely to be granted if the settlor joins in the action, because the Claflin material-purpose test is satisfied under such circumstances.

Advance Healthcare Directives - Revocation

In most states, an individual may revoke an advance healthcare directive at any time. A living will may be revoked by tearing, obliterating, burning, or destroying the instrument. Revocation becomes effective when it is communicated to the testator's primary physician. Under the UHCDA, to revoke the designation of an agent, the revocation must be contained in a signed writing or be made personally to the supervising healthcare provider. UHCDA § 3. In the case of a former spouse, revocation is automatic upon annulment or dissolution of the marriage.

Divorce and probate

In most states, divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive. Unif. Probate Code § 2-804. In some states, however, divorce revokes a will provision for the former spouse only if the divorce is accompanied by a property settlement agreement. If a divorced couple remarries before the testator dies, then the will provisions relating to the former spouse or domestic partner are revived. Separation without divorce does not affect the rights of the spouse or domestic partner unless a complete property settlement is in place.

Advance Healthcare Directives - Eligible Agents and Surrogates

In most states, the agent must be at least 18 years old. In addition, unless he is a spouse or close relative, the agent cannot be the individual's healthcare provider or an employee of the provider. The agent may be related to the principal and may even be a devisee under the principal's will or an heir of a principal without a will. If an agent has not been appointed or cannot serve, a surrogate may make a decision on behalf of the patient. Under family consent laws, a family member may act as a surrogate. Under the UHCDA, a hierarchy, running from the (i)patient's spouse (unless legally separated) to (ii) his adult child to (iii) his parent to (iv) his adult brother or sister, is established. If none of these relatives is reasonably available, then an adult who exhibited special care and concern for the patient and who is familiar with the patient's personal values may serve as surrogate. UHCDA § 5.

Partner obligation of good faith and fair dealing

In observing the duties of loyalty and care and in exercising any rights, a partner has the obligation of good faith and fair dealing. RUPA 404(d). The partnership agreement cannot eliminate this obligation, but it can prescribe reasonable standards by which the performance of the obligation is measured. RUPA103(b)(5).

State's right to use neutral principles

In response to a claim of intentional racial discrimination in jury selection, the state has the right to apply neutral, nonracial principles to jury selection, even though it results in a smaller percentage of minorities on juries. The state must prove "absence of discriminatory intent."

Crime committed outside the presence of the arresting party

In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he has probable cause to believe has committed a felony, but a private individual may make an arrest only if (i) a felony has actually been committed and (ii) the private individual reasonably believes that the person being arrested is guilty.

Ownership and current control in searches

In some instances, ownership of the premises is not sufficient to confer authority to consent to a search. For example, a landlord may not consent to a search of the tenant's premises. Chapman v. United States, 365 U.S. 610, 617 (1961). Similarly, a hotel clerk cannot consent to the search of a guest's room until the guest has permanently checked out. Stoner v. California, 376 U.S. 483, 489 (1964). However, some circuits have held that the owner of a house can consent to a search of rooms occupied by non-paying guests.

Clergy-Pentitent privilege

In some jurisdictions, a confidential communication made by a penitent to a member of the clergy is privileged. The penitent holds the privilege, but the clergy member must assert the privilege on the penitent's behalf.

Mortman Acts

In some jurisdictions, the proportion of the estate that a testator who is survived by a spouse, parent, or child may leave to charity is statutorily limited. In others, a will that bequeaths property to charity may be required to have been executed more than a specified length of time before the testator's death in order to be effective. Laws containing such requirements are known as Mortmain Acts. Most states impose no such limitations on charitable bequests due to either legislative reform or judicial invalidation by reason of unconstitutionality under the Equal Protection Clause.

Derivative action - futility exception

In some states, a demand upon the board is not required if the demand would be futile. Factors for determining futility include whether the directors are disinterested and independent and whether the transaction was the product of a valid exercise of business judgment. Marx v. Akers, 666 N.E.2d 1034 (1996). Under the RMBCA, however, there is a universal demand requirement for all derivative actions. Therefore, the futility exception is not recognized in states that have adopted the RMBCA. RMBCA § 7.42.

Voluntary manslaughter as imperfect defense

In some states, murder may be reduced to voluntary manslaughter when the defendant contends that his use of deadly force was necessary in defense of himself or others, but (i) the defendant started the altercation or (ii) the defendant unreasonably (if truly) believed in the necessity of using deadly force.

Lawsuits between a state and the US

In suits between a state and the United States, the United States must consent before the state can file suit against it; conversely, the United States does not need to obtain consent from a state to file suit against that state. As between states, no consent is needed for one state to file suit against another state. Suits against federal officers are limited, and generally prohibited, because such suits are considered to be brought against the United States if payment of the award will be made from the public treasury. However, if the federal officer acted outside the scope of his professional capacity, then a suit may be instituted against the officer individually.

Trust and adopted children

In the absence of a specific provision addressing whether adoptive children are to be considered children for the purpose of taking under a written instrument, the transferor's intent controls. At common law, adoptive children did not qualify as beneficiaries in written instruments. The modern trend is to presume that "children" includes adopted children absent a contrary intent. Under the UPC, an adopted person is included in the class gift in accordance with the UPC rules for intestate succession, which provide that an adopted person is the child of his or her adoptive parent.

Time of measuring corporate solvency for distribution

In the case of a dividend, a corporation's solvency is measured on the date the dividend is declared; in the case of a stock purchase, it is measured on the date the purchase price is paid. RMBCA §6.40(e).

Public-use challenge and regulatory taking

In the context of a regulation, a state or local government can act under its police power for the purposes of health, safety, and welfare. In addition, a public purpose can encompass aesthetic and environmental concerns. Moreover, it is generally inappropriate for a court to examine whether a regulation substantially advances a legitimate governmental interest. (Note, however, that an arbitrary or irrational regulation may constitute a due-process violation.) Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005).

Jury Trial

In the federal system, the Sixth Amendment provides the right to jury trials. States are obligated under the Fourteenth Amendment to provide jury trials in criminal cases involving only serious offenses. Duncan v. Louisiana, 391 U.S. 145 (1968). States have wide latitude, though, to determine the conduct and details of jury use.

Insanity burden of proof

In the majority of jurisdictions, the defendant has the burden of proving insanity. The level of proof required in these jurisdictions can be either a preponderance of the evidence or clear and convincing evidence. Other jurisdictions require the defendant to overcome the presumption of sanity by introducing evidence of the defendant's insanity, and then shift the burden of persuasion to the prosecution, which has to prove beyond a reasonable doubt that the defendant is sane.

Miranda rights

In the seminal case of Miranda v. Arizona, the U.S. Supreme Court held that a suspect has a constitutional right not to be compelled to make incriminating statements in the police interrogation process. Miranda v. Arizona, 384 U.S. 436 (1966). Miranda once was considered to be necessary in nearly every encounter with police. However, the Supreme Court has been gradually narrowing the scope and limiting the use of Miranda. Any incriminating statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights). An incriminating statement includes not only a confession, but other inculpatory statements, and is subject to suppression even though the defendant intended the statement to be exculpatory.

Distribution of assets upon partnership dissolution

In winding up a partnership's business, creditors have priority over partners to the partnership's assets. RUPA 807.

Competency of criminal defendant

Incompetency is a bar to trial. The judge has a constitutional duty to investigate and determine the competence of the defendant to stand trial if such evidence is apparent to the judge. A separate hearing is held to assess the defendant's competency. The test for whether a defendant is competent to stand trial is the same test for determining whether the defendant is competent to plead guilty: whether the defendant comprehends the nature of the proceedings against him and has the ability to consult with a lawyer with a reasonable degree of rational understanding. If the defendant is declared mentally incompetent to stand trial, and the charge is a serious criminal offense, then the government may administer antipsychotic drugs. Three conditions must be met before the defendant can receive these drugs: i) The treatment should not cause serious side effects that would affect the fairness of the trial; ii) The treatment is necessary and there is no less intrusive method to further the government's important interest; and iii) The treatment is medically appropriate. The conviction of a legally incompetent defendant or the failure of the trial court to provide an adequate competency determination violates due-process principles by depriving the defendant of the constitutional right to a fair trial. State courts may place the burden of proving incompetence on the defendant, but they may not require the defendant to prove it by clear and convincing evidence.

Treatment of persons not specified in the warrant

Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification. Ybarra v. Illinois, 444 U.S. 84 (1979). However, in conducting a search for contraband pursuant to a warrant, any occupant of the premises to be searched may be detained in a reasonable manner, which may include the use of handcuffs, for a reasonable time while the search is conducted. Muehler v. Mena, 544 U.S. 93 (2005); Michigan v. Summers, 452 U.S. 692 (1981). Such a detention is only justified for individuals within the immediate vicinity of the premises to be searched. If an individual is not in the immediate vicinity of the premises, then a detention of that individual must be justified by some other rationale. Bailey v United States, 568 U.S. ___, 133 S. Ct. 1031 (2013) (detaining suspect one mile away from premises was unreasonable).

Effect of judgment on partnership

Individual partners need not be named in a suit against the partnership in order to collect a judgment out of partnership assets. However, a judgment against a partnership is not a judgment against its partners. Unless there is also a judgment against the partner, a judgment against a partnership cannot be satisfied from a partner's assets, only from the partnership's assets. RUPA307(a-c), inc. cmts. 2, 3. Even though a partner is personally liable for a partnership obligation, a partnership creditor generally must exhaust the partnership's assets before levying on the partners' personal assets. Exceptions exist when the partnership is a debtor in bankruptcy, the partner has consented, or the partner is liable independent of the partnership, such as when the partner was the primary tortfeasor. In addition, a court may authorize execution against a partner's assets when the partnership's assets are clearly insufficient, exhaustion of the partnership's assets would be excessively burdensome, or it is otherwise equitable to do so. RUPA 307(d).

Domicile of Individuals

Individuals can have more than one residence at a time, but they can have only one domicile at a time, which can be acquired either by choice or by operation of law.

Insanity Criminal Defense

Insanity encompasses mental abnormalities that may affect legal responsibility. It is a legal term rather than a psychiatric term. The four tests for insanity are the M'Naghten test, the irresistible-impulse test, the Durham rule, and the Model Penal Code test. These tests expressly exclude the "sociopathic" or "psychopathic" criminals who have a tendency to commit antisocial and sometimes violent acts and are incapable of experiencing guilt. A defendant who puts his sanity at issue can be compelled to submit to psychiatric testing after being informed of his Fifth Amendment rights.

Kidnapping - hidden location

Instead of movement, the victim may be concealed for a substantial period of time at a hidden location.

Shareholder action by unanimous written consent

Instead of voting at a meeting, all shareholders may take any action that could have been undertaken at a meeting by unanimous written consent.

Discrimination against men

Intentional discrimination against males is generally struck down for violating equal protection. However, there have been some instances of discrimination against men being upheld because of the important governmental interest: i) Draft registration of males, but not females, Rostker v. Goldberg, 453 U.S. 57 (1981) (interest of preparing combat troops); and ii) A statutory rape law that held only men criminally liable for such conduct, Michael M. v. Sonoma County Superior Court, 450 U.S. 464 (1981) (interest in preventing teenage pregnancy).

Discrimination against women

Intentional discrimination through gender classification will generally be struck down under the intermediate scrutiny standard. For example, a state law giving preference to men over women to be administrators of decedents' estates was invalid. Reed v. Reed, 404 U.S. 71 (1971) (ease in determining who should serve as administrator is not an important interest). See also United States v. Virginia, 518 U.S. 515 (1996) (Virginia Military Institute could not exclude women from admission to public college based on overbroad generalizations about the physical capabilities and preferred educational methods of males and females).

Inter vivos trusts

Inter vivos trusts are lifetime transfers in trust. Although a simple declaration of trust will usually suffice if the settlor is also the trustee, delivery must accompany the declaration if a third-party trustee is named, whereby the settlor parts with dominion and control over the trust property. An inter vivos trust can be either revocable or irrevocable. Often, inter vivos trusts are used to avoid the costs and delays of the probate process. Other perceived advantages of inter vivos trusts include lifetime asset management by a third party, privacy, and choice of law.

Equal Protection Intermediate Scrutiny applicability

Intermediate scrutiny is used when a classification is based on gender or status as a nonmarital child (legitimacy). Note that in gender cases there must be an "exceedingly persuasive justification" for the classification, which may bring the standard in such cases closer to strict scrutiny. See United States v. Virginia, 518 U.S. 515 (1996).

Interrogation under Miranda

Interrogation refers not only to express questioning, but also to any words or actions that the police know or should know are reasonablylikely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291 (1980).

Rule 10b-5 - use of interstate commerce

Interstate commerce must be used in connection with the transaction. Use of a telephone, mail, or e-mail to make the transaction satisfies this requirement, as does the use of a national securities exchange. An in-person transaction may not necessarily satisfy the interstate commerce requirement.

Intestacy

Intestacy is the default statutory distribution scheme that applies when an individual dies without having effectively disposed of all of his property through nonprobate instruments or a valid will. Intestacy statutes vary from state to state, but they generally favor the decedent's surviving spouse and issue, followed by the decedent's other relations, and they direct that property escheat to the state only if none of the statutory takers survive the decedent. The actual intent of the decedent is irrelevant with regard to any property that passes by intestacy. The individuals who are entitled to a decedent's property if he dies intestate are the decedent's "heirs."

Miranda violations and involuntary confessions

Involuntary confessions (e.g., those produced by coercion) cannot be used either substantively or for impeachment purposes. If a coerced confession is admitted into evidence, however, reversal is not automatic; the harmless-error test is applied, and the conviction will stand if the prosecution can show other overwhelming evidence of guilt.

Involuntary Intoxication

Involuntary intoxication is a defense when the intoxication serves to negate an element of the crime, including general as well as specific-intent and malice crimes. To be considered involuntary, the intoxicating substance must have been taken: i) Without knowledge of the intoxicating nature of the substance, including substances taken pursuant to medical advice; or ii) Under duress. In addition, although intoxication and insanity are two separate defenses, excessive drinking and drug use may bring on actual insanity. Thus, involuntary intoxication can give rise to an insanity defense if the requirements for that defense are met.

Involuntary Manslaughter

Involuntary manslaughter is an unintentional homicide committed with criminal negligence (recklessness under the MPC) or during an unlawful act.

Isolated police negligence and the exclusionary rule

Isolated negligence by law-enforcement personnel will not necessarily trigger the exclusionary rule. To trigger the rule, police conduct must be "sufficiently deliberate such that exclusion can meaningfully deter it." The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or, in some circumstances, recurring or systemic negligence. Herring v. United States, 555 U.S. 135, 144 (2009).

Due process - right to refuse medical treatment

It is an established liberty interest that a person may not be forced to undergo unwanted medical procedures, including lifesaving measures, but the Court has not ruled on whether this right is "fundamental." Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990). There is no fundamental right to commit suicide; therefore, the state may ban the assistance of suicide. Washington v. Glucksberg, 521 U.S. 702 (1997). The Court distinguished this decision from Cruzan by stating that forced medication is a battery, and there is a long tradition of protecting the decision to refuse unwanted medical treatment.

Holographic Wills - Testamentary Intent

It must be clear that the document was intended by the testator to be a will. Intent can be presumed by the use of certain language (e.g., "I bequeath") or by the testator's use of a printed form will. The UPC expressly states that the testator's intent need not be found exclusively in the testator's handwriting, but it can be discerned from other written parts of the will or from extrinsic evidence. Unif. Probate Code § 2-502(c). A jurisdiction requiring strict compliance, however, will require that the testator's intent be discernible by the handwritten parts of the will as opposed to preprinted parts on a form will.

Standing - Redressability

It must be likely (as opposed to speculative) that a favorable court decision will redress a discrete injury suffered by the plaintiff.

Plain view doctrine

Items in public view may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public (e.g., physical characteristics, vehicle identification numbers, or items in open fields). In situations in which there is a reasonable expectation of privacy, a police officer may seize an item in plain view of the officer, even if the item was not named in the search warrant, as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item (e.g., viewing an object through a window is insufficient if the officer does not have lawful access to the inside of the house). The discovery of the item does not need to be inadvertent. Horton v. California, 496 U.S. 128 (1990); Arizona v. Hicks, 480 U.S. 231 (1987).

Partnership and joint ownership of property

Joint ownership of property (e.g., tenancy in common) does not by itself establish a partnership, even when the joint owners share profits made from use of the property. RUPA 202(c)(1).

Concurrent vs. consecutive sentences

Judges can decide whether sentences for multiple crimes run concurrently or consecutively without violating this right. Oregon v. Ice, 555 U.S. 160 (2009).

Enforcement of Foreign Judgments

Judgments determined to be entitled to full faith and credit must be enforced. This is true even if the judgment was granted erroneously, as long as it is not barred by one of the defenses discussed above (merger and bar). The law of the state that is recognizing the judgment governs the method of enforcement.

Slayer's issue

Jurisdictions are split as to whether the killer's issue should also be barred from taking. The UPC treats the killer as if he disclaimed the property, which allows the killer's issue potentially to take under the anti-lapse, per stirpes, and per capita doctrines, if the issue qualify. Unif. Probate Code § 2-803(b).

Conspiracy - Punishment

Jurisdictions vary widely with respect to penalty provisions for conspiracies. Some jurisdictions make conspiracy a misdemeanor regardless of the objective, while other jurisdictions provide maximum sentencing depending on the objective. Still others allow for a permissible maximum sentence, regardless of the objective. Nevertheless, sometimes the sentencing for conspiracy is more severe than the punishment for the crime itself.

Kidnapping

Kidnapping is the: i) Unlawful; ii) Confinement of a person; iii) Against that person's will; iv) Coupled with either: a) The movement; or b) The hiding of that person.

Larceny by Trick

Larceny by trick is i) Larceny ii) Accomplished by fraud or deceit iii) That results in the conversion of the property of another. Larceny by trick requires that the defendant fraudulently induce the victim to deliver possession of, but not title to, the property to the defendant.

Larceny intent to permanently deprive

Larceny is a specific-intent crime. The intent to permanently deprive the owner of the property must be present at the time of the taking. There is no defense of restoration if the defendant later has a change of heart and restores the property to the rightful owner. The crime is complete at the time of the taking.

Larceny

Larceny is the: i) Trespassory; ii) Taking and; iii) Carrying away; iv) Of the personal property; v) Of another; vi) With the intent to permanently deprive that person of the property (i.e., intent to steal).

Robbery merger

Larceny, assault, and battery all merge into robbery or attempted robbery.

Equal Protection rational basis burden of proof

Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.

Due Process Rational Basis burden of proof

Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. In court, the government's stated interest in enacting the law need not be one that it offered when the law was passed. Any legitimate reason will suffice. This factor distinguishes rational basis review from strict scrutiny, when the government must defend the interest that it stated at the outset.

Racial classifications

Laws or regulations that intentionally disadvantage on the basis of race, ethnicity, or national origin have almost always been struck down for failing to advance a compelling state interest. One exception was Korematsu v. United States, 323 U.S. 214 (1944), in which the internment of Japanese-Americans during World War II was upheld in the name of national security.

Suspect Classifications

Laws that categorize based on race, ethnicity, national origin, or (in some cases) alienage are considered suspect and therefore require closer judicial examination. Such laws are subject to strict scrutiny and are invalid unless they are necessary to achieve a compelling governmental interest.

Legitimacy and Choice of Law

Legitimacy is the legal kinship between a child and her parent(s). The status of a child's legitimacy at birth is governed by the law of the domicile of the parent whose relationship to the child is in question.

Death penalty and lethal injection

Lethal injection is not considered cruel and unusual punishment because there is only a mere possibility that the condemned may receive an improperly administered shot that would cause him unnecessary pain.

Doctrine of Advancement - Satisfaction of Legacies

Lifetime gifts to beneficiaries who take under a will are examined in a similar manner and follow the same rules as advancement of intestate shares. An inter vivos transfer occurring between the testator and beneficiary will satisfy the gift if (i) the testator intends that the transfer satisfy a testamentary gift and (ii)there is a written acknowledgment of such satisfaction by the testator or beneficiary. Inclusively, situations in which the testator's intent is not apparent and cannot be proven will satisfy the legacy and give rise to the doctrine of ademption, if the testator makes an inter vivos transfer to the beneficiary of the specifically bequeathed item. See § V.F.3., supra.

Limited Partnerships

Limited partnerships are governed by the Revised Uniform Limited Partnership Act of 1976 with the 1985 amendments (RULPA), which is linked to the RUPA. A limited partnership is a partnership formed by two or more persons that has at least one general partner and at least one limited partner. RULPA 101(7). A limited partner's liability for partnership debts is limited to the amount of her capital contribution to the partnership. RULPA 303(a).

Defamation and First Amendment

Limits on punishment for defamatory speech may apply in cases in which the plaintiff is a public official or public figure, or when a defamatory statement involves a matter of public concern. In addition to the elements of a prima facie case of defamation, the plaintiff must in these cases prove both fault and the falsity of the statement.

Trust Beneficiaries' Right of Enforcement

Lost profits, lost interests, and other losses resulting from a breach of trust are the responsibility of the trustee, and beneficiaries may sue the trustee and seek damages or removal of the trustee for breach. The trustee is also not allowed to offset losses resulting from the breach against any gains from another breach. If the beneficiaries joined the breach or consented to the trustee's actions, however, equity will prevent the beneficiaries from pursuing an action against the trustee. Note, though, that a beneficiary's failure to object to the breach does not rise to the level of consent.

Larceny employee's control over employer's property

Low-level employees can only be guilty of larceny whereas high-level employees are typically guilty of embezzlement. An employer generally has constructive possession of property in the hands of a lower-level employee. Such an employee has custody, not possession, of the employer's property. A higher-level employee (e.g., company president) who has greater authority with respect to the employer's property may have possession of, rather than custody of, such property and may be guilty of embezzlement, rather than larceny, for taking the property.

Arson malice

Malice does not require ill will. The defendant is not required to intend to burn the dwelling of another; it is sufficient that the defendant performs an act with reckless disregard that creates a substantial risk of such burning.

LLC membership

Many LLC statutes require that there be at least two members; however, one-member LLCs are possible. However, a person cannot become a member of an LLC without the consent of all other members of an LLC.

Uniform Foreign Money-Judgments Recognition Act

Many states have adopted the Uniform Foreign Money-Judgments Recognition Act. The act covers foreign judgments that grant or deny specific lump sums of money, but it excludes judgments for taxes, judgments for alimony or child support, and penal judgments.

Benefit Corporation

Many states have enacted benefit corporation acts. A benefit corporation is a for-profit entity with the corporate purpose of creating a general public benefit. Such benefits may include providing services to low-income or underserved individuals or communities, improving human health, preserving the environment, and promoting the arts, sciences, or advancement of knowledge.

LLC Charging order

Many statutes also permit transfer of financial rights to creditors, who can obtain a charging order against the member's interest. ULLCA § 503. A charging order constitutes a lien on a judgment debtor's transferable interest and requires the LLC to pay to the judgment debtor any distribution that otherwise would be paid to the member. A charging order is the sole method by which a judgment creditor of a member or transferee can extract any value from a member's ownership interest in an LLC. ULLCA §503(h). The operating agreement generally has no power to alter the provisions of this section to the prejudice of third parties.

Trustee power to withdraw

Many trusts give the trustee the power to withdraw income, principal, or both from the trust to carry out the trust's purpose. The power to withdraw could also be conferred upon the settlor, which would enable the settlor to withdraw assets from the trust without revoking it.

Due Process - contraception

Married persons have the right to use contraceptives, Griswold v. Connecticut, 381 U.S. 479 (1965), as do unmarried persons, Eisenstadt v. Baird, 405 U.S. 438 (1972). A state may not limit the sale of contraceptives to dispensation only by pharmacists or only to individuals older than age 16. Carey v. Population Services International, 431 U.S. 678 (1977).

LLC Suits

Members may bring direct actions against the LLC and other members to enforce their rights as members under the operating agreement and the state LLC statute. To do so, a member must plead and prove an actual or threatened injury, which is not solely the result of an injury suffered by the LLC. ULLCA § 901. Although a member may sue the LLC or another member to enforce the member's rights under the operating agreement, members of a manager-managed LLC do not have the right to maintain a direct action against the manager of the LLC when the alleged misconduct caused harm only to the LLC. See also Wright v. Herman, 230 F.R.D. 1, 10 (2005). Members may bring a derivative action on behalf of the LLC to enforce rights of the LLC. To do so, demand must be made on the other members or manager to bring an action if the member fails to do so, unless such demand would be futile. ULLCA § 902. The members must further allege in their complaint the efforts that they made to secure the manager's initiation or the reasons for not doing so. ULLCA § 904.

Defenses to felony murder

One of the following circumstances can constitute a defense to a felony-murder charge: i) A valid defense to the underlying felony; ii) The felony was not distinct from or independent of the killing itself (e.g., aggravated battery); iii) Death was not a foreseeable result or a natural and probable consequence of the felony (i.e., there was no proximate causation); or iv) Death occurred after the commission of the felony and the ensuing flight from the scene of the crime.

Mistake of law as defense to crime

Mistake or ignorance of the law generally is not a valid defense, except when: i) There is reliance on the decision of a court, administrative order, or official interpretation of the law determined to be erroneous after the conduct; ii) A statute defining a malum prohibitum crime (i.e., a crime for engaging in conduct not obviously wrong, such as a failure to obtain a license) was not reasonably made available prior to the conduct; or iii) An honestly held mistake of law negates the required intent (e.g., specific intent) or mental state (e.g., purposefully) for a material element of the crime. MPC § 2.04(1). Incorrect or bad legal advice from an attorney is not itself a valid mistake-of-law defense, but it may negate the required intent or mental state for a material element of the crime. Similarly, a mistake of law as to the existence of a defense does not permit a defendant to raise the defense unless one of the exceptions enumerated above applies.

Involuntary dissolution

Modern corporate statutes allow minority shareholders to ask the court to dissolve the corporation. A court may order involuntary dissolution if the shareholder shows one of the statutory grounds. Either a shareholder or a creditor of a corporation may bring an action for involuntary dissolution of a corporation. A creditor may pursue the involuntary dissolution of a corporation only if the corporation is insolvent. RMBCA § 14.30(c). A shareholder may pursue the involuntary dissolution of a corporation if: i) The corporate assets are being misapplied or wasted; ii) The directors or those in control of the corporation are acting illegally, oppressively, or fraudulently; iii) The directors are deadlocked in the management of the corporation's affairs, the shareholders are unable to break the deadlock, and irreparable injury to the corporation is threatened or being suffered; or iv) The shareholders are deadlocked in voting power and have failed to elect successors to the directors whose terms have expired. RMBCA § 14.30(b). In a minority of states, deadlock is the exclusive ground for involuntary dissolutions. In some states, other grounds are available only to close corporations.

LLC Inspection rights

Most LLC statutes provide LLC members with inspection rights similar to shareholders (i.e., for a proper purpose and upon reasonable request). Whether a request is reasonable depends on the scope, reasons, importance of the information to the member, etc.

Requirements to disclaim testamentary gift

Most disclaimer statutes have specific requirements that must be followed for the disclaimer to be effective. For example, an interest cannot be disclaimed once an heir or beneficiary has accepted the property or any of its benefits. Most jurisdictions require that the disclaimer be in writing, signed, and filed within nine months of the decedent's death. The nine-month period begins to run at the later of the death of the decedent or the date the interest becomes vested. However, under federal law, and for the disclaimer to be valid for tax purposes, the disclaimer must be filed nine months from the later of the decedent's date of death or the heir's or beneficiary's attainment of age 21. When disclaiming an interest acquired through joint tenancy, the surviving joint tenant has nine months from the date of the other joint tenant's death to disclaim the interest. With future interests, while certain jurisdictions allow an heir or beneficiary up to nine months from the date the interest vests in possession to disclaim an interest, to avoid federal taxation, the interest must be disclaimed within nine months of its creation. When the future interest being disclaimed is a life estate, the testator's remaindermen are determined at the testator's death rather than the life tenant's death as would generally be the case. The remainder is accelerated because the interest passes as though the disclaimant, in this case the life tenant, predeceased the decedent. Jurisdictions vary as to whether the disclaimer statute applies to probate property (the traditional approach) or whether it also includes nonprobate property (the modern approach) and must identify the decedent, describe the interest being disclaimed, and state the extent of the disclaimer.

Will Restraints on Marriage - Partial

Most provisions, however, that might initially be viewed as absolute restraints on marriage have been construed by the judiciary as mere statements of the testator's motives or attempts by the testator to provide for a person until marriage and, as such, have been upheld. Conditions in partial restraint of marriage are not against public policy if they merely impose reasonable restrictions on marriage or attempt to prevent an ill-advised marriage (e.g., to a specific individual). A provision conditioning a gift upon the beneficiary's not marrying a person outside his own religious group has been held to be valid. In re Estate of Feinberg, 919 N.E.2d 888 (Ill. 2009).

Knock and announce warrants

Most states and the federal government mandate that a police officer, when executing either a search or an arrest warrant, must generally announce his purpose before entering. The knock-and-announce rule gives individuals the opportunity to comply with the law, to avoid the destruction of property occasioned by a forcible entry, and to collect themselves with dignity before answering the door. The rule also serves to protect officers and the inhabitants of the building from physical harm, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. A state may permit an exception to the rule if the entry is made under exigent circumstances, such as when there is a reasonable belief of danger to the officer or destruction of evidence. Ker v. California, 374 U.S. 23, 34 (1963). Note, however, that the interests protected by the knock-and-announce requirement do not include the shielding of potential evidence from discovery. Thus, violation of the "knock and announce" rule does not trigger the exclusionary rule (see § I.C.6., infra) with respect to evidence discovered as a result of a search conducted in violation of the "knock and announce" rule. Hudson v. Michigan, 547 U.S. 586 (2006).

Rejection of Renvoi

Most states generally reject the application of renvoi either by choosing not to apply the whole law of the foreign state or by accepting the reference back to its own law and applying only that law to the case. The governmental-interest approach wholly rejects the application of renvoi. The Restatement (Second) of Conflict of Laws generally rejects the application of renvoi, but it does require that a state look to the whole law of the foreign state in determining title or succession to land.

Defense Against Foreign Law - Borrowing Statutes

Most states have adopted "borrowing statutes," which bar suits on foreign causes of action that are precluded under the shorter of the forum state's statute of limitations or the statute of limitations of the place where the cause of action arose (for tort cases, the place of the wrong; for contract cases, generally the place where the contract was to be performed).

Stock subscriptions

Prior to incorporation, persons may subscribe to purchase stock from the corporation when it comes into existence.

Poverty classifications

Most statutes and regulations that classify on the basis of wealth (i.e., discriminate against the poor) are subject only to rational basis scrutiny and will be upheld. There is an exception for cases in which governmental action prohibits the poor from exercising a fundamental right because of a government-imposed fee; strict scrutiny will usually apply in those situations. For example, the availability of appeal in a criminal case cannot hinge on ability to pay for a trial transcript. Griffin v. Illinois, 351 U.S. 12 (1956). Also, poll taxes are unconstitutional because wealth is unrelated to a citizen's ability to vote intelligently. Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

"Heat of passion"

Murder committed in response to adequate provocation (i.e., in the "heat of passion") is voluntary manslaughter. The "heat of passion" means that the defendant was provoked by a situation that could inflame the passion of a reasonable person to the extent that it could cause that person to momentarily act out of passion rather than reason. The defendant cannot have been set off by something that would not bother most people.

National Guard

National Guard units are under the dual control of the federal and state governments. Under the Militia Clauses (Art. I, Sec. 8, Cl. 15, 16), Congress has the power to authorize the President to call National Guard units to execute federal laws, suppress insurrections, and repeal invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is not subject the approval or veto of the governor of a state. Perpich v. Dep't of Def., 496 U.S. 334 (1990). (Note: By statute, Congress has restricted the exercise of this constitutional authority. 10 U.S.C. §§ 331-335; 18 U.S.C. § 1385.)

Free Exercise and generally applicable laws

Neutral state laws of general applicability that have the incidental effect of interfering with one's ability to engage in religious practices are subject only to the rational basis test. Employment Div. v. Smith, 494 U.S. 872 (1990) (criminalization of peyote that did not contain an exception for use in Native American religious rituals upheld, as the ban was not motivated by any desire to burden religious conduct).

Burglary nighttime

Nighttime occurs during the period of darkness between sunset and sunrise. It is not considered nighttime if there is sufficient natural daylight to see the burglar's face. The common law required that the breaking and entering occur during nighttime. Only a very few states require that all forms of burglary be committed at night, although many states impose more severe penalties on nighttime burglaries.

Promoters

Prior to the formation of a corporation, a promoter engages in activities, such as procuring capital and entering into contracts, to bring the corporation into existence as a business entity.

Establishment Clause standard of review

Not every governmental action that impacts religion is unconstitutional. To determine whether a particular program violates the Establishment Clause, the Court has most often applied the three-part test developed in Lemon v. Kurtzman, 403 U.S. 602 (1971). A governmental action that benefits religion is valid if: i) It has a secular purpose; ii) Its principal or primary effect neither advances nor inhibits religion; and iii) It does not result in excessive government entanglement with religion. Though still applied, the Lemon test has often been modified or set aside in the Supreme Court's more recent Establishment Clause cases.

Procedure for LP to Partnership

Notwithstanding a contrary provision in the limited partnership agreement, the conversion must be approved by all of the limited partners. Once the conversion is approved, the limited partnership must cancel its certificate of limited partnership. The conversion takes effect upon the cancellation of that certificate. RUPA 903(b)-(d).

Due process - right to avoid disclosure of personal medical information

Numerous courts include personal medical information within a "zone of privacy." See, e.g., Doe v. Attorney General of the United States, 941 F.2d 780 (9th Cir. 1991), United States v. Westinghouse Electric Corp., 638 F.2d 570 (3rd Cir. 1980). Though the right to protect personal, confidential information is not absolute, courts weigh it against competing interests, employing a balancing test that generally includes consideration of the government's need for access to the information and the adequacy of safeguards, as well as the type and substance of the requested records and the potential for harm in non-consensual disclosure. See C.N. v. Ridgewood Board of Education, 430 F.3d 159, 178 (3rd Cir.2005).

Nuncupative Wills

Nuncupative (oral) wills are generally valid only for the disposition of personal property in contemplation of immediate death and are invalid under the UPC and in most states. In jurisdictions where they are valid, nuncupative wills require at least two witnesses, can devise only a limited amount of personal property, and may require that the testator die within a prescribed period after making the oral will.

Taxing Power for any purpose

Of the three branches of the federal government, Article I, Section 8 of the Constitution gives Congress the plenary (i.e., exclusive) power to raise revenue through the imposition of taxes. The government has no burden to prove that the tax is necessary to any compelling governmental interest. Instead, the General Welfare Clause has been interpreted as permitting Congress to exercise its power to tax for any public purpose. (Note: This clause has been interpreted as having the same effect on the spending power, as discussed at §II.B.2. Spending, infra.) While the General Welfare Clause gives Congress broad power in exercising its spending and taxing powers, it does not give Congress the specific power to legislate for the public welfare in general. Such "police power" is reserved for the states.

Compliance with Miranda

Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights. The failure to give a suspect the Miranda warnings does not require suppression of physical fruits of the suspect's "unwarned but voluntary statements." United States v. Patane, 542 U.S. 630, 640 (2004).

Continuation of partnership after dissolution

Once a partnership has been dissolved, but before the winding up of its business is complete, the partnership may resume carrying on its business as if dissolution had never occurred. To do so, all partners (including any properly dissociated partners) must agree to waive the right to terminate the partnership. RUPA 802(b).

Continuity of Domicile

Once established, a domicile is presumed to continue until a new domicile is acquired. The burden of showing a change in domicile is on the party that asserts it. Temporary or even prolonged absences will not, by themselves, result in a change of domicile. Thus, a domiciliary of one state can live in another state for years and retain his domicile in the original state, so long as he intends to return to that state. An old domicile by choice continues even though a new residence is established until there is the intention to create a new domicile.

Trustee self-dealing no further inquiry

Once self-dealing is established, there need be no further inquiry into the trustee's reasonableness or good faith because self-dealing is a per se breach of the duty of loyalty.

Sixth Amendment offense-specific

Once the Sixth Amendment right to counsel is properly invoked, it applies only to the specific offense at issue in those proceedings. McNeil v. Wisconsin, 501 U.S. 171, 175-176 (1991).

Organizational meeting

Once the articles of incorporation are filed, an organizational meeting is held at which the appointment of officers, adoption of bylaws, and approval of contracts may take place. When the incorporators hold the meeting, election of the board of directors also takes place. RMBCA § 2.05.

Due process - abortion and post-viability

Once the fetus reaches viability, the state may regulate, and even prohibit, abortion, as long as there is an exception to preserve the health or life of the mother. In other words, at the point of viability, the state's interest in protecting fetal life may supersede a woman's right to choose; because the state's interest in protecting fetal life cannot supersede its interest in protecting a woman's health, however, there must be an exception for the woman's health.

Trust contract proceeds

Proceeds from life insurance policies or other contracts in which the trust or trustee is named as a beneficiary are allocated to principal unless the contract insures the trustee against loss, in which case the proceeds are allocated to income.

Section 16(b) corporate insiders

Only corporate directors, officers (e.g., president, vice president, secretary, treasurer, or comptroller), and shareholders who hold more than 10 percent of any class of stock are subject to a Section 16(b) action. Generally, transactions made before becoming a corporate insider are not considered in determining short-swing profits. However, transactions made after ceasing to be a corporate insider are considered in determining short-swing profits.

Standing to Contest Will

Only directly interested parties who stand to benefit financially may contest a will, such as beneficiaries under the current or prior will. Creditors of beneficiaries, spouses of beneficiaries under prior wills, and pretermitted heirs cannot contest.

Section 16(b) applicable corporations

Only the following publicly traded corporations are protected by Section16(b): (i)corporations that have securities traded on a national securities exchange or (ii)corporations that have assets of more than $10million and more than 500shareholders of any class of stock or other equity security.

Reasonable Expectation of Privacy

Only unreasonable searches and seizures are subject to Fourth Amendment protections. An unreasonable search occurs when the government (1) invades a place protected by a reasonable expectation of privacy, or (2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information. Katz v. United States, 389 U.S. 347 (1967); Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013) (using a drug-sniffing dog on a homeowner's porch for the purpose of investigating the contents of the home constituted a search); United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012) (placement of GPS device on defendant's vehicle for the purpose of monitoring the vehicle's movements constituted a search).

Role of Court and Jury in content of documents

Ordinarily, the court determines whether the proponent has fulfilled the conditions for admitting other evidence of the content of a document. In a jury trial, however, the jury determines any issue as to whether: i) An asserted writing, recording, or photograph ever existed; ii) Another writing, recording, or photograph produced at trial is the original; or iii) Other evidence of content correctly reflects the content. Fed. R. Evid. 1008.

Miscellaneous Hearsay Exceptions

Other hearsay exceptions for which the declarant's availability is immaterial include: i) A statement concerning personal or family history, such as a birth, death, marriage, or divorce contained in a regularly kept record of a religious organization (Fed. R. Evid. 803(11)); ii) A statement of fact in a marriage or baptismal certificate (Fed. R. Evid. 803(12)); iii) A statement of fact about personal or family history contained in a family record, such as a Bible or an engraving on a ring (Fed. R. Evid. 803(13)); iv) Records of, and statements in, documents affecting an interest in property (Fed. R. Evid. 803(14), (15)); v) Statements in ancient documents (i.e., authenticated documents in existence at least 20 years) (Fed. R. Evid. 803(16)); vi) Market reports and similar commercial publications generally relied upon by the public (Fed. R. Evid. 803(17)); vii) Reputation concerning personal or family history, boundaries or general history, or character (Fed. R. Evid. 803(19)-(21)); and viii) A judgment admitted to prove a matter of personal, family, or general history or a boundary, if the matter was essential to the judgment and could be proved by evidence of reputation. Fed. R. Evid. 803(23).

Property and Vested-Rights Approach

Outside of the UCC. Under the vested-rights approach of the Restatement (First) of Conflict of Laws, the creation and transfer of interests in tangible personal property are governed by the law of the state in which the property was located at the time of the transaction at issue. This rule controls even when the property at issue may have been taken to another state without the permission of the owner.

Property and Most-Significant-Relationship Approach

Outside the UCC. Under the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, the law of the situs of the tangible personal property at the time that the relevant transaction took place generally determines the choice of law. However, if it is determined that another state has a more significant relationship to the transaction, then that state's law will apply.

Arson another's dwelling

Ownership is not required. The test is whether a person has the right to possession or occupancy of the dwelling. Many states have expanded arson to include the burning of one's own dwelling. At common law, however, the burning of one's own dwelling (house burning) that was located near other houses or in a city was only a misdemeanor, and burning one's own building for insurance fraud was not considered arson. Most states have expanded arson to include the burning of buildings other than dwellings, but burning the contents of a building alone does not constitute arson.

Trust Investment decision making

Part of being prudent is taking care to make informed decisions regarding the investment scheme and/or delegating such decision making to an expert.

Persons bound by stock transfer restrictions

Parties to an agreement that restricts stock transfers are bound by the terms of the contract. Other parties are not subject to a transfer restriction unless they are aware of it. If the restriction is noted on the face of the stock certificate, then the buyer may be treated as having had constructive notice of the restriction. A transfer restriction imposed through an amendment of the articles of incorporation or corporate bylaws raises the question of whether persons who were shareholders before the restriction was imposed are subject to it. The RMBCA does not subject such shareholders to a restriction unless the shareholders voted in favor of the restriction or were parties to the restriction agreement. RMBCA § 6.27(a).

Dissolution discharge of partnership obligations

Partnership assets are first applied to discharge partnership obligations to creditors (including partners who are creditors of the partnership) before being distributed to the partners. RUPA 807(a).

Partnership by conduct

Passive co-ownership of property by itself does not create a partnership. Courts will consider the amount of related activities directed toward achieving a business's end goal when determining whether a partnership exists. RUPA202cmt. 1.

Perjury

Perjury involves the willful act of falsely promising to tell the truth, either verbally or in writing, about material matters that affect the outcome of a case. A witness cannot be prosecuted for making two contradictory statements if they are made during the same proceeding and the witness admits, prior to the end of the proceeding, that one of the statements is false. All witnesses are absolutely immune from civil liability based on their alleged perjured testimony in litigation brought under the Civil Rights Act, 42 U.S.C. § 1983.

Consent to search upon false assertion of authority

Permission given in acquiescence to lawful authority (e.g., a warrant) is not voluntary. Consequently, if the officer conducting the search erroneously states that he has a warrant, then permission given in reliance on that statement does not constitute consent. Bumper v. North Carolina, 391 U.S. 543, 549 (1968).

Priority for Appointment as Personal Representative

Persons who are not disqualified to serve as the personal representative should have priority for appointment in the following order: i) the person named in a probated will; ii) the surviving spouse of the decedent who is a devisee of the decedent; iii) other devisees of the decedent; iv) the surviving spouse of the decedent; v) other heirs of the decedent; vi) 45 days after the death of the decedent, any creditor. Unif. Probate Cord § 3-203.

Unknown conspirators, single conspiracy - chain relationship

Persons who do not know each other can be members of the same conspiracy if there is a community of interest in the achievement of the object of the conspiracy. A community of interest is usually found when the activities of each person resemble links of a chain, such as a scheme to acquire and distribute drugs. In such a conspiracy, all of the members of the community of interest are liable for the acts of the others in furtherance of the conspiracy.

Anticipatory Warrant

Police do not have to believe that contraband is on the premises to be searched at the time the warrant is issued. The probable cause requirement is satisfied when, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place. United States v. Grubbs, supra.

Impermissibly suggestive identification

Police identification procedures that are highly suggestive usually are also impermissibly suggestive. However, even when such procedures are highly suggestive, they may not be impermissibly so, if they are necessary. For example, an identification made by a witness of defendant brought in handcuffs to the witness's hospital room by uniformed police officers was not impermissible suggestive because the witness was the only person who could identify the perpetrator, the witness could not leave her hospital room, and it was uncertain whether the witness would survive. Stovall v. Denno, 388 U.S. 293 (1967). In addition, a defendant's due process rights are violated only if it is the police who have arranged the identification procedure to be impermissibly suggestive. For example, when a witness, asked by a police officer to describe the perpetrator of an automobile break-in, pointed out her window to the man standing next to the police officer, the identification—although made as a consequence of suggestive circumstances—was not due to identification procedures arranged by the police. Perry v. New Hampshire, supra.

Checkpoints vs. random stops

Police may generally not stop an automobile, even for a driving-related matter, without a reasonable, individualized suspicion of a violation of the law, unless the stop is effected on the basis of neutral, articulable standards. Delaware v. Prouse, 440 U.S. 648 (1979) (no random stop of a driver to verify driver's license and car registration).

Traffic checkpoints

Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not. Compare Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (sobriety check) with Indianapolis v. Edmond, 531 U.S. 32 (2000) (check for presence of illegal drugs).

Possession Offenses

Possession of a prohibited object (e.g., drug paraphernalia, burglar's tools) or a substance (e.g., illegal narcotics) is unlawful if the defendant exercises control over such object or substance. The defendant is not required to be aware that possession of the object is illegal. Dominion and control must exist for a period long enough to have provided the defendant with an opportunity to cease such dominion and control.

Admissibility of a Defendant's Statements to informants

Post-indictment statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements about the crime for which he was indicted without the assistance of counsel. United States v. Henry, 447 U.S. 264, 274-275 (1980). There is no Sixth Amendment violation, however, if the police place an informant in the defendant's cell simply to listen and report the defendant's statements, without questioning the defendant. Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986).

Power of attorney revocation

Powers of attorney may be revoked by the principal at any time, regardless of the principal's mental or physical condition.

Exception to waiver of stock rights by preemption

Preemptive rights do not apply to shares that are: i) Issued as compensation to directors, officers, agents, or employees of the corporation; ii) Authorized in the articles of incorporation and issued within six months from the effective date of incorporation; or iii) Sold for payment other than money (e.g., property). RMBCA § 6.30(b)(3).

Criminal Trial exception to presidential privilege

Presidential communications must be made available in a criminal case if the prosecution demonstrates a need for the information. A judge may examine the communications in camera to determine whether the communications fall within the privilege. United States v. Nixon, supra.

Omitted Children

Pretermitted heir statutes permit children of a testator under certain circumstances to claim a share of the estate even though they were omitted from the deceased testator's will. While the birth or adoption of a child after the execution of a will does not invalidate the will, such children are omitted from the will. If the testator then dies without revising the will, a presumption is created that the omission of the child was accidental.

Will Contracts - Writing

Proof of contract can be established if: i) The will states the material provisions of the contract; ii) The terms are contained in a written contract; or iii) Express reference is made in the will to the contract, and extrinsic evidence proves the terms. The UPC requires that the contract be in writing and be within the will to be enforced through probate. Unif. Probate Code § 2-514. Otherwise, the contract must be enforced through contract law.

Property and Choice of Law

Property can be classified as real or personal. The law of the place where the property is situated generally determines whether it is real or personal. Note that the law can change when property is removed from one state to another. Thus, the character of the same property, whether personal or real, may vary according to its location.

Larceny abandoned versus lost property

Property that has been abandoned by its owner (i.e., the owner has surrendered all rights to the property) is not subject to larceny. Property that has been lost by its owner can be the subject of larceny if, at the time of the finding, the finder knows the owner or believes that he can locate the owner and the finder possesses the necessary intent to permanently deprive the owner of the property.

Larceny mistakenly delivered property

Property that has been mistakenly delivered may be the subject of larceny if the recipient of the property realizes that a mistake has been made at the time of the receipt of the property and the recipient possesses the necessary intent to permanently deprive.

Embezzlement type of property

Property that is subject to larceny is also subject to embezzlement. In some states, real property, as well as personal property, may be embezzled.

Takings Clause - Types of Property

Property that may be subject to the protection of the Takings Clause includes not only land and other real property, but also tangible personal property as well as intangible property, such as contract and patent rights and trade secrets. Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984); Lynch v. United States, 292 U.S. 571 (1934); James v. Campbell, 104 U.S. 356 (1882).

Tax exemptions for religious organizations

Property-tax exemptions for religious institutions have been held valid as being equivalent to exemptions given to other charitable organizations and therefore neither advancing nor inhibiting religion. Walz v. Tax Comm'n, 397 U.S. 664 (1970). Tax exemptions that are available only for religious activities or organizations, however, violate the Establishment Clause as an endorsement of religion. Texas Monthly v. Bullock, 489 U.S. 1 (1989).

Jury views on capital punishment

Prospective jurors who are opposed to the death penalty may be removed for cause if their opposition to the death penalty is so strong as to prevent or substantially impair the performance of their duties at the sentencing phase of the trial. Wainwright v. Wirr, 469 U.S. 412, 424-425 (1985); Adams v. Texas, 448 U.S. 38, 44 (1980). An improper exclusion of a juror from a jury that imposed a death sentence is subject to automatic reversal. Gray v. Mississippi, 481 U.S. 648, 668 (1987).

Expressive Conduct

Protected speech can include not only written, oral, and visual communication, but also activities such as picketing and leafleting. Expressive conduct (or symbolic speech) may also be protected as speech, but it is subject to a lesser degree of protection. Governmental regulation of expressive conduct is upheld if: i) The regulation is within the government's power to enact (e.g., through a local government's police power); ii) The regulation furthers an important governmental interest; iii) The governmental interest is unrelated to the suppression of ideas; and iv) The burden on speech is no greater than necessary. United States v. O'Brien, 391 U.S. 367 (1968) (prohibition against burning draft cards upheld as furthering the important governmental interest in a smoothly functioning draft system). An example of permissible regulation of expressive conduct includes upholding a ban on public nudity, such as nude dancing in adult entertainment venues, pursuant to the important governmental interest in preventing the "harmful secondary effects" of adult entertainment on neighborhoods, which is unrelated to the suppression of expression. City of Erie v. Pap's A.M., 529 U.S. 277 (2000). Examples of impermissible regulation of expressive conduct include: i) A ban against students wearing black armbands to protest the war in Vietnam, because the government's only interest in banning the conduct was prohibiting communication, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); and ii) A federal prohibition against burning the American flag because the law was intended to suppress messages of disapproval of governmental policy, rather than any conduct-related consequences of the burning of a flag. United States v. Eichman, 496 U.S. 310 (1990). iii) An ordinance prohibiting leafleting that results in littering on public streets, because the governmental interest in clean streets is insufficient justification, and such a ban on distribution is not narrowly tailored to protect the communication of information and opinion. Schneider v. State of New Jersey Town of Irvington, 308 U.S. 147 (1939). The act of signing a petition constitutes expressive conduct. Public disclosure of the petition, and, thereby, the names of the individuals who signed the petition does not violate the First Amendment because such disclosure is substantially related to the important interest of preserving the integrity of the electoral process. Doe v. Reed, 561 U.S. 186 (2010).

Homicide mercy killing

Providing a person with the means by which that person can commit suicide generally does not make the provider guilty of murder as an accomplice but instead guilty of a lesser crime, such as assisting a suicide. Note, however, that consent is not a defense to homicide, so a "mercy killing" (i.e.,euthanasia) can be a criminal homicide even if the person was willing to die because of a painful terminal illness.

Will Restraints on Marriage - Absolute

Provisions in a will imposing a forfeiture of a gift if the beneficiary should ever marry are invalid as against public policy. Similarly, requirements that a beneficiary may marry only with the consent of executors or trustees who would profit under the terms of the will by withholding consent have been held invalid.

Valuation of consideration for stock

Under the RMBCA, the board of directors must merely determine that the consideration received for the stock is adequate. Moreover, once the board makes such a determination, the adequacy of the consideration is not subject to challenge. RMBCA §6.21(c).

Homicide Proximate cause

Proximate cause (i.e., legal cause) exists only when the defendant is deemed legally responsible for a homicide. For the defendant to be legally responsible for a homicide, the death must be foreseeable. A death caused by the defendant's conduct is deemed foreseeable if death is the natural and probable result of the conduct. Actions by a third party (e.g., negligence by the doctor treating the victim), as well as actions by the victim (e.g., suicide to escape the pain that resulted from the injuries inflicted by the defendant), are generally foreseeable. However, actions by third parties will relieve the defendant of liability if they are independent of the defendant's conduct and unforeseeable, or dependent on the defendant's conduct and "abnormal" (i.e., not just unforeseeable, but unusual or extraordinary in hindsight). 2 Wayne R. LaFave, Substantive Criminal Law § 14.5(d), at 453 (2d ed. 2003). Actions by a force of nature that are not within the defendant's control are generally not foreseeable (e.g., a lightning strike that kills a victim the defendant tied to a tree). An act that accelerates death is a legal cause of that death.

Public employee loyalty oaths

Public employees may be required to take loyalty oaths promising that they will support the Constitution and oppose the forceful, violent, or otherwise illegal or unconstitutional overthrow of the government. Connell v. Higgenbotham, 403 U.S. 207 (1971). However, oaths that forbid or require action in terms so vague that a person of common intelligence must guess at the oath's meaning and differ as to its application are often found to be so vague or overbroad as to deprive an individual of liberty or property without due process. E.g., Cramp v. Board of Public Instruction, 368 U.S. 278 (1961) (striking down as vague a statute requiring public employees to swear that they have not and will not lend "aid, support, advice, counsel, or influence to the Communist Party"); Shelton v. Tucker, 364 U.S. 479 (1960) (striking down as overbroad a statute requiring teachers to file an affidavit listing every organization to which they have belonged or regularly contributed during the past five years).

Death penalty for non-homicide crimes

Punishment that is disproportionately excessive in relation to the crime committed is prohibited by the Eighth Amendment. The death penalty is considered excessive in rape cases, whether the victim was an adult woman or a child, Coker v. Georgia, 433 U.S. 584 (1977); Kennedy v. Louisiana, 554 U.S. 407 (2008).

Charitable Trusts purpose

Purposes considered to be charitable include: i) The relief of poverty; ii) The advancement of education or religion; iii) The promotion of good health; iv) Governmental or municipal purposes; and v) Other purposes benefiting the community at large or a particular segment of the community. While a certain political party is not deemed to be a charitable beneficiary, those seeking to advance a political movement may be charitable beneficiaries. A determination as to whether or not a beneficiary is charitable involves an inquiry into the predominant purpose of the organization and the determination of whether or not the organization is aimed at making a profit. The rules applying to charitable trusts are not applicable to those with both charitable and noncharitable purposes, unless two separate and distinct trust shares are capable of being administered, in which case the rules are applicable to the charitable share. A charitable purpose can be found even if the settlor created the trust out of noncharitable motives.

Due Process - Felon voting

Pursuant to Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison. Richardson v. Ramirez, 418 U.S. 24 (1974).

Terry Stop of a car

Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if: i) The police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and ii) The search of the passenger compartment is "limited to those areas in which a weapon may be placed or hidden." Michigan v. Long, 463 U.S. 1032, 1048-50 (1983). Police may order occupants out of a vehicle that they have lawfully stopped. Maryland v. Wilson, 519 U.S. 408 (1997). When police make a lawful traffic stop, they are automatically detaining both the driver and the passenger. They may only frisk the driver or the passenger if they have reasonable suspicion that the person is carrying a weapon. Arizona v. Johnson, 555 U.S. 323 (2009).

Federal Taxation of states

Pursuant to the Supremacy Clause of Article VI, the federal government may tax a state; the Tenth Amendment does not protect a state from federal taxation. New York v. United States, 326 U.S. 572 (1946) (excise tax impose on sale of mineral water could be imposed on mineral water from state-owned property); South Carolina v. United States, 199 U.S. 437 (1905) (federal licensing tax imposed on sellers of alcohol could be imposed on sellers who were agents of the state even when the tax was paid by the state). A tax on a payment made by a state to private person that is not directly imposed on the state is constitutional, even though the tax may have a substantial adverse impact on the state. Id., (federal income tax on interest received by holders of state bonds); Helvering v. Gerhardt, 304 U.S. 405 (1938) (federal income tax on salaries of state employees).

Treaty Clause

Pursuant to the Treaty Clause (Art. II, Sec. 2. Cl. 2), the President has the exclusive power to negotiate treaties, although a treaty may only be ratified with the concurrence of two-thirds of the Senate.

Procedural Defenses Against Foreign Law

Questions about the following matters are generally considered procedural and are controlled by the law of the forum state: i) The proper court in which to bring an action; ii) The form of the action to be brought; iii) The sufficiency of the pleadings; iv) The effect of splitting a cause of action; v) The proper or necessary parties to an action; vi) Whether a counterclaim may be brought; vii) Venue; viii) The rules of discovery; ix) The right to a jury trial; x) Service of process; xi) The burden of proof; xii) Trial procedure; and xiii) The methods of enforcing a judgment.

Fundamental rights

Some rights are so deeply rooted in our nation's tradition and history that they are considered fundamental. These rights include: (i) the right to travel; (ii) the right to vote; and (iii) the right to privacy (including marriage, sexual relations, abortion, child rearing, and the right of related persons to live together). Under strict scrutiny, a law interfering with the fundamental rights of travel and privacy will generally be upheld only if it is necessary to achieve a compelling governmental interest. With regard to the fundamental right to vote, the level of scrutiny can depend on the degree to which this right is restricted. Government infringement upon nonfundamental rights—those related to social or economic interests such as business, taxation, lifestyle, or zoning—requires only a rational relationship between the law and a legitimate governmental interest.

Divorce and Choice of Law

Questions of law relating to the grounds for divorce are controlled by the law of the plaintiff's domicile in a divorce matter. For issues regarding marital property already owned by either spouse at the time of the marriage, the law of the situs will control with regard to real property, while the law of the domicile will control with respect to personal property. For personal property acquired during the marriage, the law that controls is the law of the domicile of the parties at the time of the acquisition. For real property acquired during the marriage, the law that controls is the law of the situs of the real property. Note, though, that if marital funds or property are used by one spouse to acquire land in another state, then the land that is acquired has the same character as the funds or property used to acquire it. Thus, if a wife in a community-property state purchases a house in a separate-property state using community funds, the house will be community property and not separate property. In determining the enforceability of a premarital agreement, most states apply the law of the state with the most significant relationship to the matter at hand. See Restatement (Second) of Conflict of Laws § 188.

Defense Against Foreign Law - Evidence and privileges

Questions regarding the admissibility of evidence are usually considered procedural and are controlled by the law of the forum state. Issues relating to the existence of a privilege are treated differently from other evidentiary issues depending on the choice-of-law approach applicable in the forum. Under the vested-rights approach of the Restatement (First) of Conflict of Laws, the existence and validity of a privilege is considered procedural and is governed by the law of the forum state. Under the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, the law of the state with the most significant relationship to the privileged communication will control. Under the governmental-interest approach, the underlying interests of the competing states are weighed to determine whether a particular privilege should apply. Questions regarding the application of the parol evidence rule are considered substantive and are controlled by the law of the state that governs the validity of the contract. See § II.C.2 Contracts, supra.

Inheritance of real property and choice of law

Questions regarding the transfer of real property from someone who dies intestate or who has a will are governed by the law of the situs.

Diversity in public universities and colleges

Race may be used as a "plus factor" (i.e., one of a range of factors to consider) in determining whether a student should be admitted to a public college or university, as there is a compelling interest in obtaining the educational benefits of a diverse student body. The use of racial quotas or of race as a determinative criterion, however, violates equal protection and is unconstitutional. Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Regents of University of California v. Bakke, 438 U.S. 265 (1978). Race may not be considered unless the admissions process used to achieve a diverse student body can withstand strict scrutiny. Strict scrutiny here requires the university to clearly demonstrate that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose. Fisher v. Univ. of Texas, 570 U.S. ___, 133 S. Ct. 2411 (2013). Further, a university must regularly evaluate available data and "tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest." Fisher v. Univ. of Texas, 579 U.S. ___, 136 S. Ct. 2198 (2016). State laws that commit policy determinations regarding racial preferences to the voters (e.g., ballot issues) do not violate equal protection. Courts may not disempower the voters from choosing whether race-based preferences should be adopted, continued, or ended. The privilege to enact laws is a basic exercise of voters' democratic power. The constitutional validity of the choices made is a separate question. Schuette v. Coalition to Defend Affirmative Action, 572 U.S. ___, 134 S. Ct. 1623 (2014) (upholding amendment to Michigan's constitution prohibiting state universities from considering race as part of the admission process).

Access to Courts post-conviction

Reasonable access to courts, with no unreasonable limitations on presenting arguments, is a right of prison inmates. In addition, inmates cannot be prohibited from consulting with other inmates if there is no reasonable alternative in the prison, such as a law library.

Trust deferred compensation plan proceeds

Receipts from a deferred compensation plan (e.g., a pension plan) are considered income if characterized as such by the payor and likewise are principal if so characterized. If the payor does not characterize the payment as income or principal, then 10% of the payment is income and the rest is principal.

Receiving Stolen goods

Receiving stolen property is a statutory crime that requires: i) Receiving control of stolen property; ii) Knowledge that the property is stolen; and iii) Intent to permanently deprive the owner of the property. Knowledge that the property is stolen must coincide with the act of receiving the property. Only control, not possession, is necessary. The goods must have actually been stolen at the time they are received, and the defendant must believe that they have been stolen.

Issue - Adoption

References in a will to "children" are deemed to include adopted children. An adopted child is treated as a biological child for purposes of inheritance. Adoption curtails all inheritance rights between the natural parents and the child. If an adopted child dies intestate, then his property is distributed among those individuals who would have been his heirs had he actually been born to his adoptive parents. Unif. Probate Code § 2-119.

Trustee duty to sell

Regardless of what the trust document says about the trustee's ability to retain trust assets, a trustee has a duty to sell trust property within a reasonable time if a failure to diversify would be inconsistent with the modern portfolio approach. Any delay in disposing of under-performing or over-performing property creates a duty in the trustee to reallocate sale proceeds to those beneficiaries who were adversely affected by the delay.

Due process - family relations

Related persons, including extended family members, have a fundamental right to live together in a single household. Moore v. City of East Cleveland, 431 U.S. 494 (1977).

Board of directors business judgment rule

The business judgment rule is a rebuttable presumption that a director reasonably believed that his actions were in the best interests of the corporation. The exercise of managerial powers by a director is generally subject to the business judgment rule. A typical decision protected by the business judgment rule includes whether to declare a dividend and the amount of any dividend.

Ministerial Exception to Discrimination Laws

Religious institutions can rely on a "ministerial exception" to federal and state employment discrimination laws in their decision to hire or fire a minister. The purpose of the ministerial exception, which is based on both the Establishment and Free Exercise Clauses of the First Amendment, is not merely to safeguard a church's decision to discharge a minister when it is made for a religious reason but also to ensure that the authority to select and control who will serve as a minister to the church's faithful, a strictly ecclesiastical matter, is solely the church's decision. The exception operates as an affirmative defense to an otherwise cognizable claim, but not as a jurisdictional bar. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S. 171 (2012) (employee whose responsibilities included religious instruction was "minister" within scope of ministerial exception, and as such, church and school could not be held liable in E.E.O.C.'s discrimination enforcement action on her behalf).

Rape - resistance of the victim

Resistance of the victim is not required, but it can be evidence of the victim's lack of consent.

Forms of stock sale restriction

Restrictions on the transfer of stocks can take various forms, including: i) An outright prohibition on transfers; ii) Transfers requiring consent from the corporation or its shareholders; iii) Options to buy the stock held by the corporation or its shareholders; iv) A right of first refusal (i.e., stock must be offered to the corporation or its shareholders before selling it to another person); v) The corporation requires or has the right to buy back the stock; or vi) A buy-sell agreement with either the corporation or its shareholders being obligated to buy the stock. When a restricted transfer is permitted, the transfer itself may be required upon the occurrence of a specific event, such as the retirement, death, or divorce of the shareholder. RMBCA § 6.27(d).

Revocation of Codicils

Revocation of a will revokes all codicils thereto, whereas revocation of a codicil does not revoke a will, but rather revives it.

Effect of safe-harbor from director self-dealing

Satisfaction of the safe-harbor defenses is not necessarily a complete defense, and some states instead hold that the burden of proof shifts to the party challenging the transaction to establish that the transaction was unfair to the corporation. Kahn v. Lynch Communication System, 638 A.2d 1110 (Del. 1994).

Second-degree murder

Second-degree murder is a homicide committed with the necessary malicious intent: the intent to kill, the intent to do great bodily injury, or a depraved-heart murder. In addition, a murder that occurs during the commission of a felony other than the felonies that trigger first-degree murder may statutorily be treated as second-degree murder.

Seduction

Seduction occurs when a man induces a woman to have sexual intercourse with him on the false promise of marriage. Subsequent marriage may be a defense in some jurisdictions.

Sentencing and Defendant rights

Sentencing is considered a critical stage triggering the Sixth Amendment right to counsel. A defendant may have the right to confrontation and cross-examination at sentencing, particularly in death-penalty cases, or when a sentence is based upon a finding of new facts beyond those necessary to prove the offense charged. Gardner v. Florida, 430 U.S. 349, 358 (1977); Specht v. Patterson, 386 U.S. 605, 610 (1967).

Shareholder approval of merger

Shareholder approval requires a majority vote, meaning a majority of the votes cast, but the shareholders' meeting at which the vote is taken is subject to a quorum requirement, which is usually a majority of shares entitled to vote. RMBCA §11.04. If the corporation has more than one class of stock, and the amendment would affect the rights of a particular class of stock, then the holders of that class of stock must also approve of the amendment. RMBCA §11.04.

Voting pool

Shareholders may enter into a binding voting agreement, also known as a "voting pool," which provides for the manner in which they will vote their shares. Under such an agreement, shareholders retain ownership of their stock. Such an agreement is a contract that may be specifically enforced. It does not need to be filed with the corporation, and there is no time limit. RMBCA § 7.31.

Prosecution violation of the plea bargain

Should the prosecution violate the provisions of the plea bargain, the judge decides whether specific performance of the plea is required or whether the defendant can withdraw his plea. Santobello v. New York, 404 U.S. 257 (1971).

Public Records - absence of a record

Similarly, testimony that a diligent search failed to disclose a public record or statement may be admitted to prove that the record or statement does not exist, or that a matter did not occur or exist, if a public office regularly kept a record of statements for a matter of that kind. In a criminal case, a prosecutor must provide the defense with written notice of the intent to offer such evidence at least 14 days before trial, and the defendant has seven days from receipt of notice to object in writing. Fed. R. Evid. 803(10), Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

General approaches to choice of law

So long as there is no constitutional mandate or statutory directive dictating which law applies, courts generally approach choice-of-law questions using one of three different approaches. These approaches are: (i) the vested-rights approach of the Restatement (First) of Conflict of Laws, (ii) the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, and (iii) the governmental-interest approach. Note that a state may use different choice-of-law approaches for different substantive areas of the law. Thus, a state might use the vested-rights approach for contract cases, while applying the most-significant-relationship approach for tort matters.

Solicitation

Solicitation is the: i) Enticing, encouraging, requesting, or commanding of another person; ii) To commit a crime; iii) With the intent that the other person commits the crime.

Repeat offenders and Eighth Amendment

Some jurisdictions have statutes imposing mandatory indeterminate life sentences (e.g., 25 years to life) on defendants who commit three felonies, even if the felonies are non-violent property-related offenses. These recidivist statutes are not unconstitutional under either the Double Jeopardy Clause of the Fifth Amendment or the Cruel and Unusual Punishment Clause of the Eighth Amendment. Ewing v. California, 538 U.S. 11 (2003).

Equitable Conversion and Choice of Law

Some states apply the doctrine of equitable conversion, under which as soon as a valid contract is made for the sale of real property, the buyer is deemed the owner of the land, and the seller is deemed a trustee for the buyer. At the same time, the seller is deemed the owner of the money, while the buyer is deemed a trustee for the seller. Whether the doctrine of equitable conversion will apply to a transaction is governed by the law of the state in which the land at issue is located.

Elder Abuse

Some states bar an individual from taking if she is guilty of elder abuse. Jurisdictions vary on the requirements, with some barring a taker when the conduct is only short of homicide and others barring a taker after a showing of abandonment. Most jurisdictions treat the abuser as if they have predeceased the decedent.

Dangerous Proximity test

Some states continue to apply the traditional "dangerous proximity" test. Under this test, an attempt does not occur until the defendant's acts result in a dangerous proximity to completion of the crime.

Disenfranchisement of convicted felons

Some states disenfranchise a convicted felon. This prohibition on voting does not violate the Fourteenth Amendment, even when it applies to felons who have been released from incarceration. Richardson v. Ramirez, 418 U.S. 24, 54 (1974).

Accessory before the fact vs. principle in the second degree

Some states draw a distinction between an accessory before the fact and a principal in the second degree based upon presence at the scene of the crime. An accomplice who is physically or constructively present during the commission of the crime is a principal in the second degree. For example, a getaway driver some distance from the scene is deemed constructively present and will be considered a principal in the second degree. An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, for example someone who helped plan the crime or acquired tools or weapons necessary to commit the crime, is an accessory before the fact.

Enforcement of right to inspect corporate records

Some states enforce a shareholder's inspection right indirectly by imposing fines on the corporate official who improperly refuses a shareholder access to the corporate records. Under the RMBCA, direct enforcement of a shareholder's inspection right is recognized in an expedited court proceeding, under which the shareholder can secure access to the corporate records and reimbursement for litigation costs. RMBCA §16.04.

State Statutory Limitations on Choice of Law

Some states have statutes requiring certain choice-of-law rules to be applied in particular cases. For example, the Uniform Commercial Code (UCC) contains choice-of-law provisions that require a forum state to apply the UCC if the state has a reasonable relationship to the transaction.

First Amendment conflict with state right of publicity

Some states recognize a right of publicity—the right of a person to control the commercial use of his or her identity. The right is an intellectual property right derived under state law, the infringement of which creates a cause of action for the tort of unfair competition. In Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977), the Supreme Court considered a conflict between the First Amendment and a person's state-law right of publicity. A news program had televised a videotape of a daredevil's entire 15-second performance at a local fair when he was shot out of a cannon. The lower court held that the First Amendment protected the telecast from a tort suit regarding the right of publicity. The Supreme Court reversed, holding that the First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer's entire act without his consent, and the Constitution does not prevent a state from requiring broadcasters to compensate performers. Note that a state government may pass a law shielding the press from liability for broadcasting performers' acts.

Holographic Wills Dated

Some states require that a holographic will be dated. Other states, including those that have adopted the UPC, have no such requirement.

Search and government informants

Some surveillance and investigation techniques have been held not to implicate any reasonable expectation of privacy because the targets of the surveillance were regarded as having assumed the risk that the people with whom they were interacting would be government agents. There is no reasonable expectation of privacy in conversations carried on with government informants or undercover officers. Similarly, if one party to a telephone call consents to wiretapping or agrees to record the call at the government's request, such monitoring will not trigger the Fourth Amendment rights of any other party to the call. United States v. White, 401 U.S. 745 (1971). A person also runs the risk that a third party to whom she turns over information may disclose such information to the government. United States v. Miller, 425 U.S. 435 (1976).

Gift-over clause

Some trusts include gift-over clauses, which provide for a disposition of the trust property in the event the trust purpose fails. Jurisdictions are mixed as to the treatment of such clauses, but many will honor such a clause before imposing an equitable remedy.

Defendant Initial Appearance

Soon after the defendant is arrested, the defendant must be brought before a judge who advises the defendant of the charges against him and of his rights and who appoints counsel if the defendant is indigent. During this initial appearance, which may be held in conjunction with a Gerstein hearing, the judge may also determine whether the defendant should be released prior to trial and the conditions of the release (e.g., bail), accept a plea from the defendant, and set a date for a preliminary hearing.

Specialty license plates

Specialty license plates, even if designed by private individuals, are government speech and, as such, the state may refuse proposed designs based on the content of those designs. Walker v. Tex. Div., Sons of Confederate Veterans, 576 U.S. ___, 135 S. Ct. 2239 (2015) (rejection of proposed Texas license plate featuring Confederate battle flag).

Specific Intent crimes

Specific intent crimes require that the defendant possess a subjective desire, specific objective, or knowledge to accomplish a prohibited result. When dealing with specific intent crimes, it is necessary to identify specific intent for two reasons. First, the prosecution must prove the specific intent in order to prosecute the defendant; second, certain defenses (e.g., voluntary intoxication and unreasonable mistake of fact) are applicable only to specific intent crimes.

Traditional Governmental Function

State action is found when a private person carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a "company town." Terry v. Adams, 345 U.S. 461 (1953); Marsh v. Alabama, 326 U.S. 501 (1946). By contrast, a shopping center that is open to the public does not thereby assume or exercise municipal functions, and therefore is not treated as a state actor. Hudgens v. NLRB, 424 U.S. 507 (1976) (shopping mall not required to permit picketing on its private sidewalks). Similarly, merely providing a product or service that the government could offer is not sufficient to make the provider a state actor. Flagg Brothers v. Brooks, 436 U.S. 149 (1978) (statutorily sanctioned but not compelled sale of goods by bailee not state action). However, the use of peremptory challenges, even by private litigants, constitutes state action because the selection of jurors is a traditional state function and because the judge (i.e., the government) plays a significant role in the process. Edmonson v. Leesville Concrete, 500 U.S. 614 (1992).

Significant State Involvement

State action may exist if there are sufficient mutual contacts between the conduct of a private party and the government to find that the government is so pervasively entwined with the private entity that constitutional standards should apply to the private actor. Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288 (2001) (athletic association was a federal actor because the association was pervasively entwined with government policies and was managed and controlled by government officials in their government capacity). State action also exists if the actions of a private party and the government are so intertwined that a mutual benefit results, such as if the parties are involved in a joint venture. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state action was present when a clerk and sheriff acted together with a private citizen to obtain attachment against a property of the debtor). Similarly, when the government creates a corporation by special law for the furtherance of governmental objectives and retains permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the government for the purposes of the First Amendment even if the enabling statute explicitly states that the corporation is a private entity. Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374 (1995). The Supreme Court has not laid out a test to determine what constitutes significant state involvement, but some general guidelines exist. Mere licensing or regulation of a private party does not constitute state action; the state must act affirmatively to facilitate, encourage, or authorize the activity. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). Even when the state explicitly prohibits behavior that violates a person's civil rights, state action may exist if it appears the state has sanctioned the violative act. States are constitutionally forbidden from facilitating or authorizing discrimination, but they are not required to make discrimination illegal.

Traditional government function exception to state discrimination

State and local regulations may favor state and local government entities, though not local private entities, when those entities are performing a traditional governmental function, such as waste disposal. For example, an ordinance may require all trash haulers to deliver to a local public waste-treatment facility, but not to a local private facility. Compare United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007) (public facility), with C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994) (private facility). Similarly, a state may discriminate against out-of-state interests when raising money to fund state and local government projects. Dep't of Revenue of Kentucky v. Davis, 553 U.S. 328 (2008) (upholding state income tax exemption for income earned on state and local bonds, but not out-of-state bonds).

Constitutional limits on criminal authority

State authority to create crimes is based on the states' broad, inherent police power, which is implicitly recognized by the Tenth Amendment. Federal authority to create crimes is limited. There is no federal common law of crimes; all crimes are statutory. Under the U.S. Constitution, Congress is granted power over only a handful of crimes, including treason and currency counterfeiting. Under the Constitution, neither federal nor state governments may criminalize conduct that has already occurred (i.e., an ex post facto law) or impose punishment without a trial (i.e., a bill of attainder). The Due Process Clauses of the Fifth and Fourteenth Amendments prevent both federal and state governments from imposing criminal liability without giving clear warnings as to the conduct prohibited. Papachristou v. City of Jacksonville, 405 U.S. 156, 162-63 (1972) (vagrancy ordinance struck down as "void for vagueness"). Additionally, many jurisdictions are in the process of eliminating multiple convictions against a defendant with more than one offense if those multiple offenses were all part of the same criminal transaction. Some states have statutorily prohibited such convictions, while other states apply the doctrine of merger or double jeopardy to eliminate the multiple convictions.

Legislation impairing private contracts

State legislation that substantially impairs a contract between private parties is invalid, unless the government can demonstrate that the interference was reasonable and necessary to serve an important governmental interest. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978); Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983). Substantial impairment generally requires that the state legislation destroy most or all of a party's rights under a preexisting contract. See Home Bldg. and Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934); Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. 470 (1987).

State Legislator immunity

State legislators are absolutely immune from suit for damages and for declaratory and injunctive relief for actions within the sphere of legitimate legislative activity. Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719 (1980); Tenney v. Brandhove, 341 U.S. 367 (1951).

Exceptions to prohibition of plea negotiations as evidence

Statements made during pleas or negotiations are admissible, however, if another statement made during the same plea or negotiation has already been admitted, and fairness requires that the statement in question also be admitted. Such statements also are admissible in a subsequent perjury prosecution if they were false statements made under oath, on the record, and with counsel present. Fed. R. Evid. 410(b).

Medical statement made to nontreating physician

Statements made to a physician consulted only for the purpose of enabling the physician to testify at trial are admissible. Fed. R. Evid. 803(4), Notes of Advisory Committee on Proposed Rules, Exception (4); Fed. R. Evid. 703.

Miranda violations and impeachment

Statements taken in violation of Miranda may be used to impeach the credibility of the criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions. Harris v. New York, 401 U.S. 222, 224 (1971). To be admissible for impeachment, the statement must be voluntary and trustworthy. The impeaching admissions may not be used directly in deciding ultimate issues of guilt or innocence; they may only be used in determining the defendant's veracity. Post-arrest silence by a defendant who has received Miranda warnings generally may not be used by the prosecution as either impeachment or substantive evidence without violating the defendant's right to due process. Doyle v. Ohio, 426 U.S. 610 (1976); United States v. Hale, 422 U.S. 171 (1975). The Supreme Court has never applied the waiver doctrine to allow post-arrest silence to be admitted for impeachment purposes if the silence occurred after the defendant waived his right to remain silent. However, some states require a defendant to re-invoke his right to remain silent after a waiver to prevent the admission of his subsequent silence as impeachment evidence. Compare Bass v. Nix, 909 F.2d 297 (8th Cir. 1990), with Schragin v. State, 378 S.W.3d 510 (Tex. App. 2012).

"Extraterritoriality

States may not regulate conduct that occurs wholly beyond their borders. Thus, Connecticut could not require that beer sold in Connecticut not be priced higher than beer sold in any of the four neighboring states, because the Connecticut regime had the practical effect of regulating beer prices in those states. Healy v. Beer Inst., Inc., 491 U.S. 324 (1989). There may be an exception for the regulation of the internal affairs of corporations. CTS Corp. v. Dynamics Corp., 481 U.S. 69 (1987).

Political campaign contributions

Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be "closely drawn" to correspond with a sufficiently important interest. McConnell v. Federal Election Commission, 540 U.S. 93 (2003); Randall v. Sorrell, 548 U.S. 230 (2006). The government's failure to assist a party in exercising a fundamental right does not infringe upon that right and therefore is not subject to strict scrutiny. Ysursa v. Pocatello Education Association, 555 U.S. 353 (2009) (state's decision to limit public employer payroll deductions for a union's political purposes did not abridge the union's right to speech).

Defense Against Foreign Law - Statute of Limitations

Statutes of limitations are usually considered procedural, with the law of the forum state controlling. The theory for such treatment is that the statute of limitations bars the remedy but does not extinguish the underlying substantive right. However, there are several exceptions to this general rule. If the statute of limitations limits a statutory right, as opposed to simply limiting a remedy, it will be substantive rather than procedural. Generally, a limitation period in a statute that creates a right, such as a wrongful-death act, will be treated as substantive. If the statute of limitations vests as a result of prescription or adverse possession, it will be treated as substantive.

Defense Against Foreign Law - Statute of Repose

Statutes of repose limit the time within which an action may be brought, regardless of whether an injury has occurred or been discovered. It cuts off the right to a cause of action before it accrues. It is considered substantive rather than procedural, and it is controlled by the law of the state that governs the action under its choice-of-law rules.

Trust investments - statutory legal lists

Statutory lists can be either permissive, which means the trustee may invest in securities not on the list, or mandatory, in which case the trustee must invest only in securities that are on the list. In either case, the trustee must use reasonable care, caution, and skill. Additionally, the trustee must be expressly authorized to carry on the testator's business. Generally, unsecured loans and second mortgages are improper investments. Other investments such as stocks, bonds, government securities, and mutual funds are considered proper investments.

Challenge to stock sale restrictions

Stock-transfer restrictions have been subject to challenge as unreasonable restraints on alienation. Of the various forms noted above, the outright prohibition on transfer and the need for prior consent are the most susceptible to attack. However, because the test is one of reasonableness, even these two forms may be justified in particular circumstances, such as when a corporation seeks to preserve its status because it is dependent on the number or identity of its shareholders. RMBCA § 6.27(c). Because many of these restrictions are created through contractual arrangements, they may be subject to contractual defenses. In addition, the restrictions may be narrowly interpreted and subject to equitable challenges such as abandonment, waiver, or estoppel.

Targeting religious conduct

Strict scrutiny applies when the government purposely targets conduct because it is religious or displays religious beliefs. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (city ordinance banning all ritual sacrifice of animals not for the purpose of food consumption struck down as targeting the Santeria religion). A state law that is designed to suppress activity because it is religiously motivated is valid only if it is necessary to achieve a compelling governmental interest. Other laws that have been struck down as violating the Free Exercise Clause include compulsory school attendance for the Amish, Wisconsin v. Yoder, 406 U.S. 205 (1972), and denial of unemployment benefits to one whose faith prevented her from taking a job that required her to work on the Sabbath, Sherbert v. Verner, 374 U.S. 398 (1963). Similarly, denying a church access to an otherwise available public benefit purely on account of its religious status violates the Free Exercise Clause. Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577, 2017 U.S. LEXIS 4061 (June 26, 2017) .

Fruit of the poisonous tree

Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary "derivative evidence" discovered as a result of the primary taint, also known as the "fruit of the poisonous tree."

Preliminary Proceedings Pretrial

Subsequent to the defendant's arrest, various court proceedings may be held. These pretrial proceedings, which take various forms depending on the jurisdiction, can include a hearing to determine probable cause to detain (a Gerstein hearing), an initial appearance, an arraignment, a detention or bail hearing, and a preliminary hearing to determine probable cause to prosecute the defendant. Some of these proceedings may be combined, and some may not be required. In addition, the defendant may make various motions, including motions to suppress evidence obtained in violation of the defendant's constitutional rights.

Preliminary hearing to determine probable cause to prosecute

Subsequent to the defendant's initial appearance, a preliminary hearing may be held to determine whether there is probable cause to believe that the defendant has committed a specific crime. At this hearing, which is an adversarial proceeding, the defendant has the right to counsel. Coleman v. Alabama, 399 U.S. 1 (1970). A defendant who has been indicted by a grand jury is not entitled to this hearing.

Burden of proof for survivorship under intestacy

Survivorship is a question of fact that must be proven by the party whose claim depends on survivorship (i.e., the person attempting to take under the laws of intestacy has the burden of proof). At common law, a "preponderance of the evidence" standard applied. Some jurisdictions, including the UPC and USDA, have applied the higher "clear and convincing evidence" standard as a litigation deterrent.

Inheritance and Choice of Law

There are many questions that may arise when determining the law that governs inheritance. These questions include the validity of the will, the rights of nonmarital or adopted children to inherit property, and the marital rights of the surviving spouse. Which state's laws will govern these issues will depend upon the type of property at issue.

Child as Witness

The competence of a child depends on his intelligence, his ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth. Wheeler v. United States, 159 U.S. 523, 524, 526 (1895) (finding a five-year-old child competent to testify at a capital murder trial). A witness who is so young that he is unable to understand the requirement to tell the truth would be disqualified. There is, however, no specific age at which a person becomes competent. The decision with regard to competency is one for the court.

Death of a co-felon

Under the Redline doctrine, a defendant is generally not guilty of felony murder when a victim or a police officer, acting in self-defense or trying to prevent the escape of the defendant or his co-felon, kills the co-felon. Instead, the killing by the victim or the police officer is considered justifiable homicide. Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958).

Religious Freedom Restoration Act

Under the Religious Freedom Restoration Act, which is applicable only to the federal government, not to the states, even neutral laws of general applicability are subject to strict scrutiny if they substantially burden the free exercise of religion.

General Principles of Procedural Due Process

The concept of "fundamental fairness" is at the heart of the right to procedural due process. It includes an individual's right to be notified of charges or proceedings against him and the opportunity to be heard at those proceedings. When one's liberty or property interests are adversely affected by governmental action, two questions are asked: i) Is the threatened interest a protected one? ii) If so, what process is due?

Criminal False Imprisonment - unlawful

The confinement is unlawful unless it is consented to or specifically authorized by law.

Kidnapping - against the victim's will

The confinement must be accomplished by force, threats, or fraud. Consent of the victim to the confinement is a defense if given by a person with the capacity to consent. A child cannot consent to being taken out of the control of a parent or guardian.

Malice Crimes

The crimes of common-law murder and arson require malice, a reckless disregard of a high risk of harm. Although these two crimes appear to have an "intent" requirement (e.g., intent to kill), malice requires only a criminal act without excuse, justification, or mitigation. Intent can be inferred from the accomplishment of the act.

Line of business test

Under the broader "line of business" test, the key is whether the opportunity is within the corporation's current or prospective line of business. Whether an opportunity satisfies this test frequently turns on how expansively the corporation's line of business is characterized.

Voluntary Criminal Act

The criminal act must be physical and voluntary. Actions during unconsciousness, sleep, or hypnosis are not voluntary. Other acts that are not considered voluntary are reflexive or convulsive acts as well as conduct that is not the product of the actor's determination. If an epileptic knows of the possibility of a seizure and engages in the voluntary act of driving a car, has a seizure while driving, and causes a fatal accident, then the epileptic is criminally responsible.

Blockburger vs. Miranda

Unlike under the Miranda standard, under the Sixth Amendment standard, the requirement for counsel to be present applies only to interrogations about the offense charged. However, like with Miranda, the defendant may make a knowing and voluntary waiver of the right to counsel being present.

Arson burning

The damage to the dwelling must be caused by fire. Smoke damage alone is insufficient. In addition, the damage must affect the structure of the building; mere scorching (i.e., discoloration due to heat) of the walls and burning of the contents of the dwelling are insufficient. When the dwelling is constructed of wood, there must be at least a charring of the wood (i.e., damage to the wood itself).

Tax deductions and aid for parochial school expenses

Tax deductions given to reimburse tuition expenses only for parents of students in religious schools are invalid. If such a deduction is available to all parents for actual educational expenses of attending any public or private school (including parochial schools), it is valid. Mueller v. Allen, 463 U.S. 388 (1983). In addition, giving parents tuition vouchers to assist them in paying religious-school tuition does not violate the Establishment Clause if the choice of whether to use the vouchers for religious or non-religious private school tuition lies with the parents. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

"doing business" taxes

Taxes levied against companies for the privilege of doing business in a state (made up of privilege, license, franchise, or occupation taxes) are valid as long as they pass the Complete Auto test (see B.1.a. "Complete Auto Test," above). Such a tax may be measured by a flat annual fee or by a graduated rate proportional to the amount of revenue derived from the taxing state. The burden of showing that a tax is unfairly apportioned is on the taxpayer.

Testamentary trusts

Testamentary trusts occur when the terms of the trust are contained in writing in a will or in a document incorporated by reference into a will. Testamentary trusts must comply with the applicable jurisdiction's Statute of Wills. If a testamentary trust does not meet the requirements of the Statute of Wills, it may still be deemed a constructive trust or a resulting trust, depending on whether it is "secret" or "semi-secret."

Remedy for violation of Sixth Amendment in post-indictment identification

Testimony about a post-indictment, pre-trial identification in the absence of counsel is inadmissible at trial, but the witness may still identify the defendant at trial if the prosecution can show that the identification has independent reliability. United States v. Wade, 388 U.S. 218 (1967).

Capital Punishment

The death penalty may be imposed only under a statutory scheme that provides: i) Clear and objective standards; ii) Specific and detailed guidance; and iii) An opportunity for rational review of the process.

Declarant

The declarant (i.e., the maker of the statement) must be a person. Evidence generated by a machine or an animal is not hearsay. Fed. R. Evid. 801(b). Examples of such nonhearsay evidence include: i) A dog's bark; ii) An automatically generated time stamp on a fax; iii) A printout of results of computerized telephone tracing equipment; and iv) Raw data (such as blood-alcohol level) generated by a forensic lab's diagnostic machine.

Waiver of Sixth for Post-indictment identifications

The defendant can waive the right to have counsel present at the lineup, provided that waiver is made knowingly and intelligently. The prosecution bears the burden of demonstrating that the waiver was valid.

Hearsay Exception - Former Testimony

Testimony that was given as a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered (or, in a civil case, a party's predecessor-in-interest) had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination. This exception applies whether the testimony was given during the current proceeding or during a different one, but the witness who gave the testimony must now be unavailable. Fed. R. Evid. 804(b)(1). Grand jury testimony generally does not fall within the former testimony exception, but it may be admissible nonhearsay evidence as a prior inconsistent statement.

Criminal Assault - fear of harm

The "fear of harm" type of assault (also called "apprehension assault") is a general-intent crime—the defendant must intend to cause bodily harm or apprehension of such harm. The victim's apprehension must be reasonable. Unlike attempted battery, because actual apprehension is necessary, the victim's lack of awareness of the threat of harm is a defense to this type of assault.

All defendants may challenge jury selection discrimination

The defendant has standing to challenge the jury-selection process, regardless of any showing of actual bias. Powers v. Ohio, 499 U.S. 400, 410-411 (1991).

Embezzlement intent to defraud

The defendant must intend to defraud the owner of the property. If the defendant intends to return the exact property that is converted and has the ability to do so at the time that the intent is formed, then the defendant lacks the intent to defraud the property owner. If the defendant intends to return similar property or the cash equivalent of the value of the property, then the defendant has the intent necessary to commit embezzlement. A conversion pursuant to a claim of right also is not embezzlement.

Will Witnesses - Line-of-sight test

The "line-of-sight" test, which is the traditional approach, requires the joint presence of the witnesses and the testator, who must observe or have the opportunity to observe each other sign the will. If the testator does not sign in the witnesses' presence, then that signature must be acknowledged. For example, when a witness signs from his office, while the testator signs in his home, the attestation requirements are not satisfied because of the risk that fraud as to the authenticity of the document being signed or the identity of the witness or testator, known by voice only, could occur.

Equal Protection and local elections

The "one person, one vote" rule applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature. Hadley v. Junior College Dist., 397 U.S. 50 (1970) (election of trustees to junior college district).

Routine booking and Miranda

The "routine booking question" exception allows police to ask a suspected drunken driver routine biographical questions and to videotape the driver's responses without first giving the driver Miranda warnings.

Statutory bail provisions

The Bail Reform Act of 1984 governs release or detention determinations in federal courts in criminal proceedings. Many states have modeled similar statutory bail provisions on the Act.

Trustee beneficiary

The beneficiary holds equitable title to the property and therefore possesses the power to enforce the trust instrument. To be valid, a trust generally must name at least one beneficiary. Any individual or entity can be named as a trust beneficiary, provided the individual or entity is capable of taking and holding title to property. Such beneficiary may be unborn at the time the trust is created, provided such beneficiary will be identifiable by the time he comes into enjoyment of the trust property. Notice is not required, but acceptance by the beneficiary is required for the trust to commence for his benefit. The beneficiary, however, has the option of renouncing his rights within a reasonable time.

Forgery intent to defraud

The defendant must intend to make wrongful use of the writing, (e.g., cashing a check with a forged drawer's signature). There must be intent to defraud, even if no one actually is defrauded.

Legislative Changes to Theft Crimes

There are several changes made to the common-law property offenses under the MPC and through states' criminal codes. Larceny, false pretenses, embezzlement, and receipt of stolen goods are treated as a single statutory crime of theft. The definition of property has been expanded to cover intangibles, services, and documents. In addition, the defendant need only have unauthorized control over the property.

False Pretenses intent to defraud

The defendant must know that the representation is false and specifically intend to defraud. Most courts find that a defendant acts knowingly and has knowledge of a particular fact when he is aware of a high probability of the fact's existence and deliberately avoids learning the truth. A few states require actual knowledge of a particular fact. A defendant has the intent to defraud required to establish false pretenses when she intends that the person to whom the false representation is made will rely upon it.

Attempt - specific intent

The defendant must possess the specific intent to perform an act or attain a result, which, if completed, would constitute the target crime, even if the target crime is not a specific-intent crime. There is no attempt to commit negligent crimes like involuntary manslaughter because a defendant's act cannot be both intentional and negligent.

Involuntary Manslaughter Causation

There must be a causal connection between the unlawful act and the death for involuntary manslaughter to apply.

Criminal Assault - attempted battery

The defendant must take a substantial step toward the commission of a battery. Like all attempt crimes, the defendant must have the specific intent to commit a battery.

Trust and gifts to issue

The Restatement (Second) of Property presumes that the per capita distribution applies to gifts to "issue" in written instruments regardless of the state's default approach to intestate distributions to issue. The majority approach follows the default rule of the jurisdiction. In most states, anti-lapse statutes do not apply to nonprobate gifts, and, therefore, if a gift to "issue" fails by reason of the non-survival of the issue, then children and further descendants of the deceased issue will not take under the trust. However, some states have enacted UPC § 2-707 or a similar statute, under which a substitute gift is created in the descendants of the deceased issue. When such statutes govern, even words of survivorship (e.g., "to those of my issue who are living") will not cut off this substitute gift.

Providing for the National Defense

The authority granted to Congress under the war power is very broad. Congress may take whatever action it deems necessary to provide for the national defense in both wartime and peacetime. The Court has upheld the military draft and selective service; wage, price, and rent control of the civilian economy during wartime (and even during the post-war period); and the exclusion of civilians from restricted areas.

Character of the Defendant and coercive confession

The defendant's age, state of health, education, or intoxication are all factors in determining the coercive nature of the confession. Although a potentially significant factor, the defendant's mental condition alone cannot violate the voluntariness standard. There must be coercive police activity for the confession to be found involuntary. Colorado v. Connelly, 479 U.S. 157 (1986).

Ancestors and Degree-of-Relationship Approach

The degree-of-relationship approach results in those with closer degrees of relationship to the decedent taking to the exclusion of more remote relatives. The degree of relationship is calculated by counting the number of relatives between the living taker and the decedent using the closest common ancestor.

Location where the contract was to be performed under vested-rights approach

The details of performance are governed by the law of the place of performance. Such details can include: i) The time and manner of performance; ii) The person who is obligated to perform and the person to whom performance is to be made; iii) The sufficiency of performance; and iv) Any excuse for nonperformance.

Death Penalty and age of the defendant

The Eighth Amendment prohibition against "cruel and unusual punishment" prohibits the execution of a defendant who was younger than 18 years of age at the time of the commission of a crime. Roper v. Simmons, 543 U.S. 551, 569 (2005). In addition, the Eighth Amendment prohibits the imposition of a sentence of life without the possibility of parole on a defendant who was younger than 18 years of age at the time of the commission of the crime if the crime was not a homicide. Graham v. Florida, 560 U.S. 48 (2010). If the crime was a homicide, the juvenile cannot be subject to a mandatory sentence of life imprisonment without the possibility of parole. Under such circumstances, the sentencing judge must be permitted to take the defendant's youth and other relevant circumstances into consideration when imposing punishment. Miller v. Alabama, 567 U.S. ____, 132 S. Ct. 2455 (2012).

Death penalty and intellectual disability

The Eighth Amendment prohibits execution of persons with intellectual disabilities (formerly referred to as "mental retardation"). Atkins v. Virginia, 536 U.S. 304 (2002).

Exclusionary rule and knock and announce

The exclusionary rule does not apply to evidence discovered as a result of a search conducted in violation of the "knock and announce" rule, if the search was otherwise authorized by a valid warrant. Hudson v. Michigan, 547 U.S. 586 (2006).

Eighth Amendment

The Eighth Amendment to the U.S. Constitution prohibits the federal government from imposing cruel and unusual punishment for federal crimes, or "such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the common law, or any fine, penalty, confinement, or treatment so disproportionate to the offense as to shock the moral sense of the community." U.S. Const. amend. VIII.

Defense Against Foreign Law - Survival Of Actions

The issue of whether a tort action survives the death of the plaintiff is treated as substantive and is controlled by the law of the state that governs the action under its choice-of-law rules.

Freedom of Religion generally

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Both the Establishment Clause and the Free Exercise Clause have been incorporated into the Due Process Clause of the Fourteenth Amendment and are therefore applicable to the states.

Timing of Miranda warning

The Miranda warning must be given before interrogation begins. If interrogation is stopped for a long duration, the warning must be given again.

Model Penal Code Insanity

The Model Penal Code combines the M'Naghten and irresistible-impulse tests. The defendant is not guilty if, at the time of the conduct, he, as a result of a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law. MPC § 4.01.

Executive Agreements

The President has the power to enter into executive agreements with foreign nations (e.g., reciprocal trade agreements) that do not require the approval of two-thirds of the Senate. Although not expressly provided for in the Constitution, executive agreements may be made, without congressional authorization, pursuant to the President's authority over foreign affairs. Conflicting federal statutes and treaties take precedence over executive agreements, but executive agreements take precedence over conflicting state laws.

Executive immunity - official duties

The President may not be sued for civil damages with regard to any acts performed as part of the President's official responsibilities. Nixon v. Fitzgerald, 457 U.S. 731 (1982). The President has no immunity, however, from a civil action based on conduct alleged to have occurred before the President took office or completely unrelated to carrying out his job. Moreover, the President may be subject to such a suit even while in office. Clinton v. Jones, 520 U.S. 681 (1997).

Types of consideration for stock

The RMBCA removed restrictions on the types of consideration that can be accepted by a corporation in payment for its stock. Acceptable consideration includes money, tangible or intangible property, and services rendered to the corporation. RMBCA §6.21(b).

Best Evidence Rule

The best evidence rule (also known as the original document rule) requires that the original document (or a reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. A "writing" is defined as "letters, words, numbers or their equivalent set down in any form." A "recording" and "photograph" are similarly broadly defined. Fed. R. Evid. 1001(a)-(c). This rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying. Fed. R. Evid. 1001-08.

Dismissal of derivative proceeding

The board can seek dismissal of the shareholder's derivative action if a majority of the board's qualified directors (i.e., directors without a material interest in the action) determine in good faith, after conducting a reasonable inquiry upon which its conclusions are based, that maintaining the action is not in corporation's best interests. RMBCA § 7.44. The board's failure to investigate credible allegations of corporate illegality constitutes lack of good faith. Stone v. Ritter, 911 A.2d 362, 364-65 (Del. 2006).

Board of directors

The board of directors manages and directs the management of the corporation's business and affairs. The board also authorizes the officers and other corporate employees to exercise the powers possessed by the corporation. RMBCA § 8.01.

Board of Directors Actions Without Meetings

The board of directors may act without holding a meeting by unanimous written consent to the action. RMBCA § 8.21.

Types of Board of Directors Meetings

The board of directors may hold regular or special meetings. Unless the articles of incorporation or bylaws provide otherwise, a director is entitled to two days' notice of the date, time, and place of a special meeting, although the purpose is not required. A regular meeting may be held without notice of the date, time, place, or purpose of the meeting. A director may waive notice of a meeting at any time by a signed written waiver. In addition, a director's attendance waives notice of that meeting unless the director promptly objects to lack of notice. RMBCA §§8.20-.23.

Board of Directors Committes

The board of directors may take action through one or more committees. RMBCA §8.25. A committee may consist of two or more directors. RMBCA §8.25. Generally, a majority of the directors must vote for the creation of a committee and the appointment of a director to a committee. RMBCA §8.25(b). A committee may generally exercise whatever powers are granted to it by the board, the articles of incorporation, or the bylaws. RMBCA §8.25(d)-(e).

Due process - strict scrutiny burden of proof

The burden is on the government to prove that the law is necessary to achieve a compelling governmental interest.

Equal Protection Strict Scrutiny burden of proof

The burden is on the government to prove that the law is necessary. Because the strict scrutiny test is a very difficult one to pass, the government rarely meets its burden, and most laws subjected to this standard of review are struck down.

Tangible Evidence generally

Tangible evidence is evidence that is not presented in the form of testimony by a witness; it includes both documentary evidence (e.g., a written contract, a letter) and physical objects (e.g., a gun, torn clothing, an injured foot, a sound recording).

Confrontation clause and the hearsay rule

The Confrontation Clause limits the use of hearsay evidence in a criminal trial. Out-of-court statements by witnesses that are "testimonial" are barred under the Confrontation Clause, unless the witnesses are unavailable and the defendant had a prior opportunity to cross-examine those witnesses, regardless of whether such statements are deemed reliable by the court. If, however, the declarant appears for cross-examination at trial, then the Confrontation Clause places no constraints at all on the use of the declarant's prior out-of-court testimonial statements. Crawford v. Washington, 541 U.S. 36, 59 (2004). Out-of-court testimonial statements are not barred by the Confrontation Clause when they are used for a purpose other than establishing the truth of the matter asserted (i.e., when they are not used for a hearsay purpose). Id. See also Tennessee v. Street, 471 U.S. 409, 417 (1985). The Confrontation Clause has no application to "non-testimonial" out-of-court statements. Whorton v. Bockting, 549 U.S. 406, 420 (2007).

Confrontation Clause and unavailability of the declarant

The Confrontation Clause mandates that the use of hearsay evidence based on the forfeiture-by-wrongdoing exception requires the defendant to have acted with the particular purpose of making the witness unavailable. The mere fact that the declarant is unavailable due to the defendant's act (e.g., murder of the witness) is not sufficient to establish such a purpose when the defendant is on trial for the act that made the witness unavailable. Giles v. California, 554 U.S. 353 (2008).

Non-testimonial statements

The Confrontation Clause permits the admission of non-testimonial statements, even if they lack indicia of reliability. Whorton v. Bockting, 549 U.S. 406, 411 (2007). Statements made for the primary purpose of assisting the police in the investigation of an ongoing emergency are not testimonial. Examples of non-testimonial statements include statements made to a 911 operator during a domestic dispute, Davis v. Washington, 547 U.S. 813, 822 (2006), and statements made to police officers by the victim of a mortal gunshot wound as he lay in a gas-station parking lot. Michigan v. Bryant, 562 U.S. 344 (2011).

Face-to-Face Confrontation

The Confrontation Clause reflects a preference for face-to-face confrontation of a defendant and a witness in court. This type of confrontation may be denied, however, if there is an important public interest at stake, such as protecting a child.

Peremptory challenge and harmless error

The Constitution allows states to choose between harmless-error review and automatic reversal when a judge, acting in good faith, erroneously denies a defendant's peremptory challenge. Rivera v. Illinois, 556 U.S. 148 (2009). Thus, if state law permits harmless-error review of the erroneous seating of the juror, there is no constitutional requirement for automatic reversal of the defendant's conviction.

Exclusive Federal Powers

The Constitution explicitly provides for some powers of the federal government to be exclusive, such as the powers to coin money or enter into treaties. Article I, Sec. 10. Other powers are by their nature exclusively federal, such as the power to declare war and the power over citizenship; a state's attempt to exercise authority in these areas would essentially subvert the power of the federal government.

State Action generally

The Constitution generally protects against wrongful conduct by the government, not private parties (with the exception of the Thirteenth Amendment's prohibition against slavery, which applies to private and government action). In other words, state action is a necessary prerequisite to triggering constitutional protections. A private person's conduct must constitute state action in order for these protections to apply. For example, state action may exist in cases of private parties carrying out traditional governmental functions or significant state involvement in the activities.

Treaties

The Constitution is superior to a treaty, and any conflict is resolved in favor of the Constitution. Reid v. Covert, 354 U.S. 1 (1957). A treaty has the same authority as an act of Congress; should the two conflict, the one most recently adopted controls. A non-self-executing treaty (one that requires legislation in order to implement its provisions) does not have the same force of law as an act of Congress until legislation is passed effectuating the treaty. In the absence of implementing legislation by Congress, the President does not have the authority to make a non-self-executing treaty binding on the states. Medellin v. Texas, 552 U.S. 491 (2008); Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., conc.). A ratified treaty takes precedence over any inconsistent state law. Missouri v. Holland, 252 U.S. 416 (1920).

Criminal Appeal

The Constitution neither provides for nor guarantees an individual the right to appeal. Nevertheless, appeals are commonplace in the U.S. justice system. Individuals are guaranteed certain rights during their appeal, among them equal protection and the right to counsel. However, despite this latter right, if an attorney believes that the appeal is frivolous, she may withdraw so long as the appellant's right to counsel continues to be protected. There is also no right of self-representation during an appeal.

Presidential Removal

The Constitution says nothing about the President's power to remove executive officers, but it is generally accepted that the President may remove any executive appointee without cause (and without Senate approval). Congress may not shield appointees from removal by the President by imposing a multi-tiered system in which persons at each level may be removed from office only for good cause. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010) (holding 15 U.S.C.S. §§ 7211(e)(6) and 7217(d)(3) unconstitutional and invalid because the multilevel protection from removal of members of the Public Company Accounting Oversight Board was contrary to Article II's vesting of the executive power in the President and contravened the Constitution's separation of powers). Federal judges, however, are protected under Article III, Section 1, which provides that they may "hold their offices during good behavior"; they may be removed only by impeachment.

Gender and affirmative action

The Court has upheld affirmative action regulations granting beneficial treatment to women over men (such as tax exemptions, increased social security benefits, and increased protection from mandatory armed forces discharge) because providing a remedy for past gender-based discrimination is an important governmental interest. See Califano v. Webster, 430 U.S. 313 (1977); Schlesinger v. Ballard, 419 U.S. 498 (1975).

Trusts and Doctrine of Worthier Title

The Doctrine of Worthier Title is a rule of construction similar to the Rule in Shelley's Case, except that it prevents remainders in the grantor's heirs, and it still applies in some states. The presumption is of a reversion to the grantor.

Civil actions and double jeopardy

The Double Jeopardy Clause does not preclude a criminal punishment and civil penalty for the same conduct. Therefore, even if a defendant has been found guilty in a criminal action, the state may still bring a civil action against the defendant that arises out of the same conduct. The protection does not apply to administrative proceedings such as a disciplinary hearing stemming from criminal conduct, nor does it apply to a parole, probation, or bond-revocation hearing related to a criminal charge or punishment. A civil penalty may be treated as a criminal punishment when the penalty amount is grossly disproportionate to governmental loss and it serves only a deterrent or retributive purpose. Dep't of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 783 (1994) (tax imposed on possession of illegal drugs after satisfaction of state and federal fines and forfeitures). However, a civil forfeiture proceeding is typically not punitive in nature. United States v. Ursery, 518 U.S. 267, 275 (1996) (forfeiture of property used in the commission of drug crimes).

Mistrial and double jeopardy

The Double Jeopardy Clause does not prohibit a retrial following a mistrial if "taking all the circumstances into consideration, there is a manifest necessity for [declaring a mistrial]." United States v. Perez, 22 U.S. 579, 580 (1824). For example, if a mistrial is declared because the judge or a juror is ill or dies, or because of a hung jury, then the defendant generally may be retried. On the other hand, if the judge grants an acquittal instead of declaring a mistrial after there has been a hung jury, then a retrial is not permitted. Moreover, if the prosecution asks for a mistrial because of its inability to locate a witness, then double jeopardy prevents a retrial. If the defendant asks for or consents to a mistrial, then she generally can be retried, unless the request is based on bad-faith conduct by the prosecutor or judge directed toward goading the defendant into seeking a mistrial. The manifest necessity standard does not apply when the defendant requests a mistrial. United States v. Dinitz, 424 U.S. 600, 606-607 (1976).

Retrial Punishment

The Double Jeopardy Clause generally does not preclude a greater sentence from being imposed on a defendant upon reconviction after a successful appeal. However, the Due Process Clause does prevent the imposition of a greater sentence upon reconviction if the greater sentence is imposed as a penalty for the exercise of a statutory right to appeal or to seek a collateral remedy. Consequently, when imposing a greater sentence upon reconviction, the judge must articulate reasons for the greater sentence that are based on objective information concerning identifiable conduct by the defendant that occurred after the original sentencing proceeding. Alabama v. Smith, 490 U.S. 794 (1989). In a jurisdiction where a jury rather than the judge determines the sentence, the jury in the retrial may impose a greater sentence unless it has been told of the defendant's original sentence. Chaffin v. Stynchcombe, 412 U.S. 17, 24 (1973).

Appeal by the defendant and double jeopardy

The Double Jeopardy Clause generally does not prevent the retrial of a defendant after an appeal on the basis of an error made at trial, such as the admission of improper hearsay evidence or improper jury instructions. Lockhart v. Nelson, 488 U.S. 33, 38 (1988). This is true even when a conviction is overturned due to the weight of the evidence. Tibbs v. Florida, 457 U.S. 31, 42 (1982). However, a retrial after reversal of a conviction due to insufficiency of the evidence is barred by the Double Jeopardy Clause. A conviction is based upon insufficient evidence if the evidence presented, when viewed in the light most favorable to the prosecution, is such that no rational fact-finder could have found the defendant guilty beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 18 (1978).

Capital sentencing and double jeopardy

The Double Jeopardy Clause is applicable to capital sentencing proceedings when there is a determination that the government failed to establish an aggravating factor that would justify the death penalty. Consequently, if a jury imposes a life sentence rather than the death penalty, then the defendant, upon retrial, may not be sentenced to death. Bullington v. Missouri, 451 U.S. 430, 445 (1981).

Collateral Estoppel and double jeopardy

The Double Jeopardy Clause recognizes the doctrine of collateral estoppel. For collateral estoppel to apply, the earlier decision must have necessarily determined the issue on which collateral estoppel is sought by the defendant. If a jury acquits a defendant on one crime but deadlocks on another crime that contains the same element, then the jury's verdict may serve to prevent retrial on the crime over which the jury was deadlocked. In such a case, issue preclusion applies to the issue(s) that the jury did determine. The burden is on the defendant to prove that the jury's verdict necessarily determined the issue that the defendant seeks to foreclose. Because a jury usually renders a general verdict in a criminal trial, it is rare that a defendant will be able to meet this burden.

Comment of the right to speedy trial

The Due Process Clause and federal statutes protect defendants from intentional and prejudicial pre-accusation delay. The Sixth Amendment speedy trial guarantee, the Fourteenth Amendment, the Speedy Trial Act of 1974, and other federal and state statutes protect defendants from undue post-accusation delay.

Speedy trial

The Due Process Clause and federal statutes protect defendants from intentional and prejudicial pre-accusation delay. The Sixth Amendment speedy trial guarantee, the Fourteenth Amendment, the Speedy Trial Act of 1974, and other federal and state statutes protect defendants from undue post-accusation delay.

Procedural Due Process

The Due Process Clause of the Fifth Amendment, which applies against the federal government, provides that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." The Due Process Clause of the Fourteenth Amendment, which applies against the states, provides that "no state shall make or enforce any law which shall ... deprive any person of life, liberty, or property, without due process of the law."

Elements of the prosecution's case

The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt. Due process does not require the court to use any particular words to advise the jury of the government's burden of proof. In some jurisdictions, the failure to instruct on reasonable doubt may result in reversible error, whereas in other jurisdictions, the lack of such an instruction is per se reversible error. Sentencing factors need not be proved beyond a reasonable doubt unless the fact is being used to increase the penalty beyond the proscribed statutory maximum, in which case proof beyond a reasonable doubt is required. Apprendi v. New Jersey, 530 U.S. 466, 492 (2000).

Article III and Eleventh Amendment

The Eleventh Amendment is a jurisdictional bar that prohibits the citizens of one state from suing another state in federal court. It immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state or a foreign country. In addition, the Eleventh Amendment bars suits in federal court against state officials for violating state law. Pennhurst State School & Hospital v. Halderman, 465 U.S.89 (1984). The Supreme Court has expanded the amendment's reach to also preclude citizens from suing their own state in federal court. Hans v. Louisiana, 134 U.S. 1 (1890). Note that the Supreme Court has also barred federal-law actions brought against a state government without the state's consent in its own courts as a violation of sovereign immunity. Alden v. Maine, 527 U.S. 706 (1999). However, neither the Eleventh Amendment nor the sovereign immunity doctrine bars a suit brought by a citizen against a state in the courts of another state. Nevada v. Hall, 440 U.S. 410 (1979).

Jury representative cross-section of the community

The Equal Protection Clause bars racial discrimination in the selection of juries, including grand juries. The requirement that a jury be selected from a representative cross-section of the community also extends to gender discrimination. However, the actual jury selected need not represent a fair cross-section of the community. Holland v. Illinois, 493 U.S. 474, 480 (1990).

Property Power

The Federal Property Clause ofArticle IV, Section 3 gives Congress the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." There is no express limit on Congress's power to dispose of property owned by the United States. Under the Fifth Amendment, however, Congress may only take private property for public use (eminent domain) with just compensation and in order to effectuate an enumerated power.

Renvoi and Federal Tort Claims Act

The Federal Tort Claims Act, 28 U.S.C. § 1346(b), requires application of the whole law, including the conflict rules, of the place where the act or omission occurred. See Richards v. United States, 369 U.S. 1 (1962). Thus, the forum will refer to the place where the act or omission occurred and then apply the conflict-of-laws rules of that state.

Fifteenth Amendment

The Fifteenth Amendment prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted.

Double Jeopardy protections

The Fifth Amendment Double Jeopardy Clause provides three protections: i) Protection against a second prosecution for the same offense after acquittal; ii) Protection against a second prosecution for the same offense after conviction; and iii) Protection against multiple punishments for the same offense.

Warrant for seizure of documents and fifth amendment

The Fifth Amendment does not prevent law-enforcement officials, pursuant to a valid warrant, from searching for and seizing documents that would incriminate a person. Andresen v. Maryland, 427 U.S. 463 (1976).

Double Jeopardy

The Fifth Amendment protection against double jeopardy applies to the federal government. It has been incorporated by the Due Process Clause of the Fourteenth Amendment, and consequently it also applies to the states. Benton v. Maryland, 395 U.S. 784 (1969).

Self-Incrimination

The Fifth Amendment protection against self-incrimination allows a witness in any proceeding to refuse to give testimony that may tend to incriminate the witness. The protection covers only current (not prior) statements and the fruits derived therefrom, and it does not apply to physical characteristics or mannerisms. The privilege belongs only to human beings. A corporation or other organization is not able to assert the privilege. Bellis v. United States, 417 U.S. 85 (1974). The Fifth Amendment only protects against domestic prosecutions; it cannot be invoked out of a fear of foreign prosecution. United States v. Balsys, 524 U.S. 666 (1998).

Fifth Amendment

The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. It is applicable to the states through the Fourteenth Amendment.

Child pornography

The First Amendment also does not protect child pornography, which is sexually explicit visual portrayals that feature children. Because of the state's compelling interest in protecting minor children from exploitation, the sale, distribution, and even private possession of child pornography may be prohibited, even if the material would not be obscene if it involved adults. Osborne v. Ohio, 495 U.S. 103 (1990); New York v. Ferber, 458 U.S. 747 (1982). Simulated child pornography (i.e., pornography using young-looking adults or computer-generated images) may not be banned as child pornography. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). However, offers to sell or buy simulated child pornography that contain actual depictions of children even though the sexually explicit features are simulated may be criminalized when the material is presented as actual child pornography. United States v. Williams, 553 U.S. 285 (2008).

Cable TV regulation

The First Amendment protection provided to cable television falls somewhere between the extensive protection given to print media and the more limited protection for broadcasting. As such, a law requiring cable operators to carry local television stations is subject to intermediate scrutiny. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994). Content-based regulations of cable broadcasts are subject to strict scrutiny, however. United States v. Playboy Entm't. Group, Inc., 529 U.S. 803 (2000).

Freedom not to speak

The First Amendment protects not only freedom of speech, but also the freedom not to speak. One such example is a child's right not to recite the Pledge of Allegiance. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Similarly, the private organizers of a parade cannot be compelled by the government to include in the parade a group that espouses a message with which the organizers disagree. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). Nor can the government mandate as a condition of federal funding that recipients explicitly agree with the government's policy to oppose prostitution and sex trafficking. Agency for International Development v. Alliance for Open Society, 570 U.S. ___, 133 S. Ct. 2321(2013). However, a state can compel a private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights when the private entity is open to the public and the message is not likely to be attributable to the private entity. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).

Discriminatory use of peremptory challenges

The Fourteenth Amendment Equal Protection Clause prohibits both the criminal defendant and the prosecutor from exercising peremptory challenges solely based on race or gender. J.E.B. v. Alabama, 511 U.S. 127 (1994); Batson v. Kentucky, 476 U.S. 79, 84 (1986). The defendant need not be a member of the excluded group in order to have standing to contest the prosecution's use of its peremptory challenges. If the explanation for striking a juror is deemed pretextual, then it gives rise to an inference of discriminatory intent that makes it difficult for the challenge to survive. Snyder v. Louisiana, 552 U.S. 472, 485 (2008). The United States Supreme Court has set forth a three-prong test (the "Batson" test) to determine whether a peremptory challenge has been exercised on the basis of race, in violation of the Equal Protection Clause of the Fourteenth Amendment. The test requires that: i) The moving party establishes a prima facie case of discrimination; ii) The party who exercised the challenge provides a race-neutral explanation for the strike; iii) The moving party carries her burden of proving that the other party's proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination. Once the party who exercised the challenge offers a race-neutral explanation and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue becomes moot. The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike.

Fourteenth Amendment and National Citizenship

The Fourteenth Amendment provides that "[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This clause protects citizens (not corporations or aliens) from infringement by the states upon the privileges or immunities of national citizenship. The privileges or immunities of national citizenship include the right to travel interstate, to petition Congress for redress of grievances, to vote for national offices, to enter public lands, to be protected while in the custody of U.S. marshals, and to peaceably assemble. Twining v. New Jersey, 211 U.S. 78 (1908). The guarantees of the Bill of Rights, however, are not privileges or immunities of national citizenship within the context of the Fourteenth Amendment. Slaughterhouse Cases, 83 U.S. 36 (1873). Therefore, those rights are protected from state action only by the Due Process Clause and the Equal Protection Clause. This provision is seldom successfully invoked; under the limiting interpretation of the Slaughterhouse Cases, the rights that the clause provides are redundant to rights provided elsewhere in the Constitution. Although the Supreme Court has since relied on the clause to underscore the right to move freely among states, Saenz v. Roe, 526 U.S. 489 (1999) (invalidating a duration requirement for welfare benefits), there has been no subsequent expansion of use; the Fourteenth Amendment's Privileges or Immunities Clause applies, in practice, only to the right to travel.

Fourteenth Amendment

The Fourteenth Amendment, Section 5 Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones. Under the separation of powers doctrine, the job of defining such rights falls to the Supreme Court. In enforcing such rights, there must be a "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to achieve that end. City of Boerne v. Flores, 521 U.S. 507 (1997) (Religious Freedom Restoration Act held invalid for failure to show widespread religious discrimination and for disproportion to any purported remedial goal). Congress may override state government action that infringes upon Fourteenth Amendment rights, but it may not under this amendment regulate wholly private conduct. In the exercise of Fourteenth Amendment powers, Congress can override the Eleventh Amendment immunity of states. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).

Automobile exception to warrant

The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of a criminal activity. The police may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers, so long as they have probable cause to do so. United States v. Ross, 456 U.S. 798, 825 (1982). The search may also extend to passengers' belongings, Wyoming v. Houghten, 526 U.S. 295, 302 (1999), as well as to mobile homes, California v. Carney, 471 U.S. 386, 393-394 (1985). Any other evidence observed in plain view may also be seized.

Fourth Amendment State Action

The Fourth Amendment limits governmental action; it does not restrict the acts of private parties unless the private person is acting as an "instrument or agent of the government." Even if governmental action exists, there still is no constitutional violation unless the individual had a reasonable expectation of privacy and either the police did not have a valid warrant or they executed an invalid warrantless search.

Search for papers and effects

The Fourth Amendment, by its terms, protects "papers and effects." For example, a person retains a reasonable expectation that items placed within his luggage will be free from a purposeful, exploratory physical manipulation of the luggage. Bond v. United States, 529 U.S. 334 (2000). When papers and effects are transferred to a third party, such as checks and deposit slips given by a customer to a bank, a person no longer has a reasonable expectation of privacy in these items. Similarly, financial statements maintained by a bank are bank records in which the customer has no reasonable expectation of privacy. United States v. Miller, 425 U.S. 435 (1976).

Foreign Commerce tax

The Import-Export Clause of Article I, Section 10 prohibits the states, without the consent of Congress from imposing any tax on any imported or exported goods, or on any commercial activity connected with imported goods, except what is absolutely necessary for executing its inspection laws. Brown v. Maryland, 25 U.S. 419 (1827). In addition, the Commerce Clause vests in Congress the power to regulate international commerce in which the United States is involved. In addition to meeting the same requirements as a tax on interstate commerce (see VII.B.1.a. "Complete Auto Test," supra), a state tax on foreign commerce must not (i) create a substantial risk of international multiple taxation or (ii) prevent the federal government from "speaking with one voice" regarding international trade or foreign affairs issues. Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298 (1994).

Hierarchy of mental states

The MPC mental states are ordered from negligence as the lowest degree of fault to purposefully as the highest level of fault. Consequently, if a statute specifies a mental state, proof of a more culpable mental state satisfies the mens rea requirement. For example, if a statutory crime required that an act be undertaken knowingly, establishing that the act was committed purposefully satisfies the mens rea requirement with respect to that act. MPC § 2.02(5).

The Second Amendment generally

The Second Amendment guarantees an individual's right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home. District of Columbia v. Heller, 554 U.S. 570 (2008) (ban on handgun possession in the home violates Second Amendment). As mentioned previously, the Second Amendment is applicable to the states through the Fourteenth Amendment. McDonald v. Chicago, 561 U.S. 3025 (2010). Like most rights, the Second Amendment right to bear arms is not unlimited. Examples of lawful regulations include imposing conditions and qualifications on the commercial sale of arms, as well as prohibitions on (i) concealed weapons, (ii)possession of firearms by felons and the mentally ill, and (iii) carrying guns in schools, government buildings, and other sensitive places are presumed to be legitimate. District of Columbia v. Heller, supra.

Public Trial - Defendant's Right

The Sixth Amendment guarantees a criminal defendant the right to a public trial. The defendant may waive the right and request a closed proceeding. However, because the request also implicates the First Amendment right of access of the press and the public, the court must consider several factors, and the likelihood of a closed proceeding is slight. The court may even allow the proceedings to be televised over the defendant's objection. The right to a public trial extends to preliminary hearings and suppression hearings. A suppression hearing may be closed if (i) there is an overriding interest likely to be prejudiced by an open trial, (ii) the closure is not in excess of the interest, (iii) other alternatives have been considered, and (iv) the court enters adequate findings to support closure.

Impartial jury

The Sixth Amendment provides that an accused person is entitled to a trial by an impartial jury. Claims of juror bias and misconduct are subject to the harmless-error rule.

When Sixth Amendment Triggered

The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when the State initiates prosecution with an indictment or formal charge and ends at the sentencing stage of the trial.

Legislative Immunity

The Speech or Debate Clause of Article I, Section 6 protects members of Congress from civil and criminal liability for statements and conduct made in the regular course of the legislative process, including a speech given on the floor of Congress, committee hearings, and reports. The activities of congressional aides are also protected if a legislator performing the same acts would be immune. Gravel v. United States, 408 U.S. 606 (1972). State legislators: The Speech or Debate Clause does not apply to state legislators, but under the principles of federalism, state legislators are immune from liability for actions within the sphere of legitimate legislative activity (see § VI.B.1.b.2, State legislators, infra). This protection does not foreclose prosecution for a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts. United States v. Brewster, 408 U.S. 501 (1972). This protection also does not apply to speeches made outside Congress, or the "re?publication" (i.e., repeating) of a defamatory statement originally made in Congress. Hutchinson v. Proxmire, 443 U.S. 111 (1979).

Federal Preemption generally

The Supremacy Clause of Article VI, Section 2 provides that the "Constitution, and the laws of the United States" are the "supreme law of the land." Any state constitutional provision or law that directly or indirectly conflicts with a federal law, including federal regulations, is void under this clause. However, the Supreme Court has frequently stated that there is a presumption against preemption, especially in areas in which states have traditionally exercised police power. Wyeth v. Levine, 555 U.S. 555 (2009) (health and safety).

Complete Auto Test

The Supreme Court applies a four-part test to determine whether a state tax on interstate commerce comports with the Commerce Clause. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977): (1) Substantial nexus; (2) fair apportionment; (3) nondiscrimination; (4) fair relationship to services provided.

Commerce clause and construed broadly

The Supreme Court has upheld acts of Congress seeking to prohibit or restrict the entry of persons, products, and services into the stream of interstate commerce, as well as acts regulating the interstate movement of kidnap victims, stolen vehicles, and telephone transmissions. However, the Commerce Clause does not give Congress the power to mandate that individuals not engaged in commercial activities engage in commerce. Nat'l Fed'n of Indep. Bus. v. Sebelius (The Patient Protection and Affordable Care Cases), 567 U.S. 519 (2012) (requiring individuals not engaged in commercial activities to buy unwanted health insurance could not be sustained as a regulation of interstate commerce).

Direct Appeal to SCOTUS

The Supreme Court must hear by direct appeal only a small number of cases—those that come from a decision on injunctive relief issued by a special three-judge district court panel. 28 U.S.C. § 1253. Although these panels (and appeals) were once fairly common, they are now limited to cases brought under a few specific statutes (e.g., the Voting Rights Act).

Critical Stages under the Sixth Amendment

The Supreme Court recently summarized its definition of "critical stage" as those proceedings between an individual and an agent of the state that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary. Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008). Generally, the Sixth Amendment right to counsel attaches at the following critical stages: i) Post-indictment lineups and in-person identifications; ii) Post-indictment interrogations, whether custodial or otherwise; iii) Arraignment and preliminary hearing to determine probable cause to prosecute, bail hearings, and pre-trial motions; iv) Plea bargaining, guilty pleas, and sentencing; and v) Appeals as a matter of right.

Re-characterization of property

The Takings Clause prevents a government from re-characterizing private property as public property.

Exclusive State Powers

The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people. In theory, this gives the states expansive, exclusive power. In practice, however, given the broad interpretation of the Commerce Clause and the spending power, the federal government has very broad authority, making state power rarely exclusive.

Alcoholic Beverage Regulation

The Twenty-First Amendment repealed prohibition and specifically gave states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state. However, this authority is narrowly confined. State regulations concerning alcoholic beverages are subject to the restrictions of the Dormant Commerce Clause, Granholm v. Heald, 544 U.S. 460 (2005), as well as the protections of the First and Fourteenth Amendments. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (Free Speech Clause); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982) (Establishment Clause); Craig v. Boren, 429 U.S. 190 (1976) (Equal Protection Clause). In addition, this amendment does not prevent Congress from exercising control over economic transactions that involve alcoholic beverages under the Commerce Clause or its spending power. 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987) (Commerce Clause); South Dakota v. Dole, supra (spending power).

Guilty pleas - factual basis

The U.S. Constitution does not forbid criminal sentencing of defendants who are willing to waive their trial and accept a plea while maintaining their innocence. Therefore, because an express admission of guilt is not a constitutional requisite for the imposition of a criminal penalty, a judge may accept pleas that result in a criminal sentence without violating the Constitution, even if the defendant maintains his factual innocence. However, Rule 11(b)(3) of the Federal Rules of Criminal Procedure requires a judge to ascertain that there is factual basis for a defendant's plea in order to accept a guilty plea. Therefore, when the defendant asserts his innocence despite entering a guilty plea, the judge must determine that there is a factual basis for the plea in order to accept the plea. North Carolina v. Alford, 400 U.S. 25, 37 (1970).

UCC and Choice of Law

The UCC generally governs most issues involving the sale of (or security interests in) tangible personal property. Under the UCC, the parties may stipulate to the applicable law that will govern the transaction or, in the absence of such stipulation, the forum state will apply its version of the UCC "to transactions bearing an appropriate relation to" the forum state. UCC §1-301. If a particular code provision specifies the applicable law, a contrary agreement is effective only to the extent permitted by the law (including the conflict-of-laws rules) so specified. UCC § 1-301(c). Under the UCC, the law governing the perfection, the effect of perfection or nonperfection, and the priority of security interests in tangible collateral is generally the law of the state in which the debtor is located. UCC § 9-301(1). In general, this means the principal residence of an individual, the place of business of an organization, and the chief executive office of an organization with more than one place of business. UCC § 9-307(b). Registered organizations (i.e., corporations, limited partnerships, and other entities requiring registration under state law), however, are located in their state of registration rather than the state of their principal place of business. UCC §9-307(e). If the debtor or the collateral moves to another state, then the secured party generally has a fixed period of time to perfect his security interest there or it will become unperfected and will be deemed never to have been perfected as against a previous or subsequent purchaser of the collateral for value. The period of time is generally four months in the case of the debtor and one year in the case of collateral. UCC § 9-316. When the debtor and the collateral are located in different states, there are special rules. If the security interest is a possessory security interest, then the law of the state where the collateral is located determines perfection, the effect of perfection or nonperfection, and the priority of that security interest. UCC§9?301(2). In addition, with regard to tangible negotiable documents, goods, instruments, money, or tangible chattel paper, the law of the state where the collateral is located determines the effect of perfection or nonperfection and the priority of a nonpossessory security interest in the collateral, while the law of the place of the debtor continues to determine the issue of perfection itself unless the collateral is a fixture or timber to be cut, in which case the law of the location of the collateral also controls the issue of perfection itself. UCC §9?301(3).

Child born out of wedlock under the Uniform Parentage Act

The UPA requires proof of paternity before a child can inherit from or through her natural father. The child can bring an action to establish paternity for inheritance purposes at any time if a presumption of paternity exists. A child must bring an action to establish paternity for inheritance purposes within three years of reaching the age of majority when there is no presumption of paternity, or the action is barred. A presumption of paternity arises if the father acknowledges the child as his own, either by holding the child out as his own or by stating so in writing and filing the writing with the appropriate court.

Doctrine of Advancement under the UPC

The UPC approach, which is the modern trend, provides that a gift is an advancement only if: i) The decedent declared in a contemporaneous writing (or the heir acknowledged in a writing) that the gift was an advancement; or ii) The decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift was to be taken into account in computing the division and distribution of the decedent's intestate estate. Unif. Probate Code § 2-109. The value of an inter vivos gift is determined at the time the recipient takes possession or enjoys it, whichever is first. Unlike the common-law approach, the UPC applies to all heirs, not just the decedent's children.

Survival under the UPC

The UPC has the same requirements with respect to survival as the USDA. The UPC further requires clear and convincing evidence that an individual in gestation at the decedent's death live for 120 hours after the death. Unif. Probate Code § 2-104.

Omitted Children under the UPC

The UPC rule applies to children adopted or born after the execution of the will. Unlike the UPC omitted-spouse doctrine, the omitted-child doctrine does not expand the scope of evidence admissible to show the testator's intent to omit the child. However, extrinsic evidence is permitted to show the testator's lack of intent to omit the child, and ambiguities are resolved in the child's favor. The UPC does not permit the presumption to be overcome when a substantial portion of the estate is transferred to the other parent of the omitted child. If the testator had no other children when the will was executed, then the child takes her intestate share. If the testator has at least one other child living at the time of the execution of the will, and the will devised property to at least one of those children, then the omitted child's share is taken from that portion of property already devised to the other child, and it must equal the share the other child receives. While the UPC does not extend the protection of the omitted-child statute to children of whom the testator was unaware, it does extend omitted-child status to children whom the testator believed to be deceased. Unif. Probate Code §2?302.

Augmented Estate

The UPC subjects property acquired before marriage, as well as that acquired during marriage, to the "marital-property" portion of the augmented estate to which the surviving spouse is entitled. The UPC augmented estate is broader than the share under a community-property state, as it includes property acquired before the marriage and property gifted to the spouse during the marriage.

Undue Influence on testator burden of proof

The burden of proof rests on the contestant to show (i) the existence and exertion of influence and (ii) that the effect of the influence was to overpower the mind and will of the testator. The result must be a will that would not have been executed but for the influence. When a presumption of undue influence arises, the burden shifts to the beneficiary to show by a preponderance of the evidence that such influence was not exercised. Some courts have held that a higher standard applies, especially in cases involving alleged physician or attorney misconduct.

Trustee Investments portfolio approach

The UPIA assesses a trustee's investments based on the total performance of the trust, as opposed to looking at individual investments, so that a high-risk investment that would have been considered too risky under the common law can be offset by lower-risk investments. The law has evolved away from the common-law statutory lists and toward the prudent investor standard and the modern trend portfolio theory. Diversification has become increasingly important, as has the trustee's duty to create a paper trail supporting the reasonableness of his actions. It is recognized that in today's market, there is a strong correlation between risk and reward, and it is undesirable for trustees to be limited to low-risk investments in the current climate. However, risk tolerance varies greatly depending upon the size and the purpose of the particular trust, both of which will be taken into account in evaluating the actions of the trustee.

Uniform Prudent Investor Act

The UPIA, adopted by the Restatement (Third) of Trusts and the Trustee Act 2000, requires the trustee to act as a prudent investor would when investing his own property but puts less emphasis on the level of risk for each investment. The trustee must exercise reasonable care, caution, and skill when investing and managing trust assets unless the trustee has special skills or expertise, in which case he has a duty to utilize such assets. Determinations of compliance under the UPIA are made with reference to the facts and circumstances as they existed at the time the action was made, and they do not utilize hindsight. In assessing whether a trustee has breached this duty, the UPIA requires consideration of numerous factors, including (i) the distribution requirements of the trust, (ii) general economic conditions, (iii) the role that the investment plays in relationship to the trust's overall investment portfolio, and (iv) the trust's need for liquidity, regularity of income, and preservation or appreciation of capital. UPIA § 2.

Uniform Simultaneous Death Act

The USDA is enacted in most states to alleviate the problem of simultaneous death in determining inheritance, and it provides that when there is insufficient evidence of the order of death of two individuals, the property of each individual passes as though the other individual predeceased him. The USDA is applicable to all types of transfers of property, whether through will, joint tenancy, contract, or intestacy. However, the USDA is applied only when there is no instrument to state otherwise. The USDA requires that an heir be proven by clear and convincing evidence to have survived the decedent by 120 hours to take under his will or by intestacy, unless the testator has provided otherwise in his will. The 120-hour rule does not apply if its application would result in an escheat to the state.

Cy pres and Uniform Trust Code

The UTC and the Restatement (Third) of Trusts both presume a general charitable purpose and authorize the application of cy pres even if the settlor's intent is not known.

Uniform Trustees' Powers Act

The UTPA obligates third parties to act in good faith and to give valuable consideration. Under the UTPA, third parties are protected as long as they act without actual knowledge that such action constitutes a breach of trust.

Modern approach to allocating trust principal and income

The Uniform Principal and Income Act (UPAIA), adopted in most states, focuses on total return to the trust portfolio, regardless of classifications of income or principal. Under the UPAIA, a trustee is empowered to re-characterize items and reallocate investment returns as he deems necessary to fulfill the trust purposes, as long as his allocations are reasonable and are in keeping with the trust instrument. The trustee may not make adjustments under the UPAIA if he is also a trust beneficiary.

Intestacy under UPC

The Uniform Probate Code ("UPC") is considerably more generous to the surviving spouse than are the provisions of most state intestacy laws. Under the UPC: i) If all of the decedent's descendants are also descendants of the surviving spouse, and the surviving spouse has no other descendants, then the surviving spouse takes the entire estate to the exclusion of the decedent's descendants. ii) The surviving spouse takes $300,000 and 75% of the remainder of the estate if no descendant of the decedent survives the decedent, but there is a surviving parent of the decedent. iii) The surviving spouse receives $225,000 and 50% of the remainder of the estate if all of the decedent's issue are also issue of the surviving spouse, and the surviving spouse has other issue. iv) If the decedent has issue not related to the surviving spouse, then the surviving spouse receives $150,000 and 50% of the remainder of the estate. v) If the decedent has a spouse but no descendants or parents, then the surviving spouse takes the entire estate. Unif. Probate Code §§ 2-102, 2-103, 2-105. In addition to favoring the surviving spouse, the UPC also favors the state. The decedent's property escheats to the state much sooner than under most state statutes. Unif. Probate Code §2?102(1)(i).

Posthumously conceived children as issue

The Uniform Status of Children of Assisted Conception (USCAC) does not recognize posthumously conceived children as natural children of a parent who dies before conception. Although jurisdictions differ on whether a posthumously conceived child can receive an intestate distribution of the deceased parent's estate, the majority follows the USCAC.

Uniform Transfers to Minors Act

The Uniform Transfers to Minors Act, enacted in all states, appoints a custodian to use the property of a minor at the custodian's discretion on the minor's behalf without court approval and with no accounting requirement. The custodian must turn any remaining property over to the minor upon the minor's attainment of age 21. If the beneficiary was a minor at the time the will was executed but attains age 21 prior to the testator's death, then the property passes directly to the minor absent an instruction otherwise contained in the will.

Ascertainable beneficiaries

The beneficiaries of a private trust must be ascertainable (i.e., identifiable by name) so that the equitable interest can be transferred automatically by operation of law and directly benefit the person. The settlor may refer to acts of independent significance when identifying trust beneficiaries. Under the Uniform Trust Code (UTC), a trustee can select a beneficiary from an indefinite class, unless the trustee must distribute equally to all members of an indefinite class. See UTC § 402(c). If a beneficiary has died without the settlor's knowledge prior to the creation of the trust, then the trust will fail for lack of a beneficiary. In this case, a resulting trust in favor of the settlor or his successors is presumed.

Voting Rights Act

The Voting Rights Act (42 U.S.C. § 1973 et seq.) requires racial gerrymandering to ensure minority success in elections by creating majority-minority districts (i.e., affirmative gerrymandering). Until recently, the Act required federal pre-clearance for changes in voting rules, including redistricting, for specific southern states and a few other local governmental units. However, the formula used as a basis for subjecting jurisdictions to preclearance has been declared unconstitutional because it no longer reflects current conditions; therefore, it can no longer be used. Shelby County v. Holder, 570 U.S. ___, 133 S. Ct. 2612 (2013). Receiving federal pre-clearance for a redistricting plan does not ensure that plan will avoid conflicting with the Equal Protection Clause. Miller v. Johnson, 515 U.S. 900 (1995). The Voting Rights Act does not require a jurisdiction to maintain a particular numerical minority percentage. Instead, it requires the jurisdiction to maintain a minority's ability to elect a preferred candidate of choice. Alabama Legislative Black Caucus, et al. v. Alabama et al., 575 U.S. ___, 135 S. Ct. 1257 (2015).

Confession of a non-testifying co-defendant and severance

The accused may assert a demand for a severance of the trial of his case from a co-defendant's case whenever the prosecution intends to introduce a confession that is hostile to one co-defendant, and the confession: i) Implicates the confessing defendant but is not admissible against the non-confessing defendant; and ii) Cannot be edited to exclude inculpation of the non-confessing defendant. Bruton v. United States, 391 U.S. 123, 132 (1968). The prosecutor may avoid severance if the court denies the use of the statement or the prosecutor chooses not to use it at trial.

Bruton rule

The admission of a confession by a non-testifying co-defendant at a joint trial against the defendant violates the Sixth Amendment, even when it merely corroborates the defendant's own confession. Bruton v. United States, 391 U.S. 123, 132 (1968). A limiting instruction will not cure the defect. If the co-defendant testifies, then the rule does not apply. The rule does not apply at a bench trial. Lee v. Illinois, 476 U.S. 530, 539 (1986). It also does not apply to the statements of an accomplice who is not tried as a co-defendant or to a co-defendant who takes the stand and denies making such a statement. Nelson v. O'Neil, 402 U.S. 622, 629-630 (1971); Dutton v. Evans, 400 U.S. 74, 88-89 (1970).

Shareholder management agreement form

The agreement must be set forth either (i) in the articles of incorporation or the corporate bylaws and approved by all persons who are shareholders at the time of the agreement or (ii) in a written agreement that is signed by all persons who are shareholders at the time of the agreement and is made known to the corporation. The agreement may be amended only by persons who are shareholders at the time of amendment. RMBCA § 7.32(b). Unless otherwise fixed in the agreement, the agreement is valid for 10 years. RMBCA § 7.32(b).

Conspiracy - Agreement

The agreement need not be a formal document, or even in writing; an oral agreement is sufficient. An agreement need not be specifically articulated but can be inferred from a concerted action by the defendants.

Criminal Battery - to the person of another

The application of force to an object near, carried by, or attached to the victim constitutes a battery if the victim suffers bodily harm or an offensive touching.

Elective Share

The application of the elective share, and the property to which it applies, varies depending on the jurisdiction. In common-law states, the elective share gives the surviving spouse a fraction (often one-third) of the decedent's estate if the surviving spouse elects to take the elective share rather than any gift contained in the will. The elective share applies to all property of the decedent, regardless of when it was acquired. The elective share does not exist in community-property states. Instead, the surviving spouse is entitled to a forced share of one-half of the community property and quasi-community property. The spouse must elect to take this share in lieu of all other interests she may have under the testator's will and must file a notice of election within a specified time period. The elective share is personal to the surviving spouse.

Corporate purpose

The articles of incorporation may include a statement of the corporation's purposes. A broad statement of such purpose, such as "to engage in any lawful activity," is acceptable. The RMBCA presumes that each corporation has the broadest lawful purpose unless a more limited purpose is defined in the articles of incorporation. RMBCA §3.01.

Articles of incorporation - governance

The articles of incorporation must be filed to incorporate, but they need not spell out the manner in which the corporation is to be governed. RMBCA §2.02(b).

Articles of incorporation filing requirements

The articles of incorporation must be filed with a state official, usually with the secretary of state, and a filing fee paid. Unless a delayed date is specified in the articles, the corporate existence begins when the articles of incorporation are filed. The articles may not set an earlier date than the date of filing. RMBCA § 2.03(a). Once the requirements are met, some states treat the corporation as having been formed as of the date of the filing, while other states consider the corporation a legal entity only when the state has accepted the articles of incorporation. RMBCA §§1.23, 2.03.

Articles of incorporation

The articles of incorporation must include certain basic information about the corporation, such as its name, the number of shares it is authorized to issue, the name and address of its registered agent, and the name and address of each incorporator. RMBCA § 2.02(a).

Standing to enforce charitable trust

The attorney general of the state of the trust's creation and members of the community who are more directly affected than the general community usually have standing to enforce the terms of the trust and the trustee's duties. Under UTC §405, a settlor also has standing to enforce the trust, even if she has not expressly retained an interest.

Exceptions to Attorney Client Privilege

The attorney-client privilege does not protect these confidential communications: i) Communications made to enable or aid the commission of what the client knew or should have known was a crime or fraud; ii) Communications relevant to a dispute between attorney and client (e.g., a malpractice allegation); iii) Communications relevant to a dispute between parties who claim through the same deceased client; and iv) Communications between former co-clients who are now adverse to each other.

Corporate bylaws

The bylaws contain any lawful provision for the management of the corporation's business or the regulation of its affairs that is not inconsistent with the articles of incorporation. When there is a conflict between the articles of incorporation and the bylaws, the articles of incorporation control. RMBCA § 2.06(b). Generally, the board of directors adopts the initial bylaws. RMBCA § 2.06(a). However, a majority vote by either the directors or the shareholders can adopt, amend, or repeal a bylaw, unless (i) the corporation's articles reserve that power exclusively to the shareholders, or (ii) the shareholders, in amending, repealing, or adopting a bylaw, expressly provide that the board of directors may not amend, repeal, or reinstate that bylaw. RMBCA § 10.20(b). Generally, shareholders may amend the bylaws to limit the board of directors' ability to amend, repeal, or reinstate a shareholder-approved bylaw. However, a shareholder-approved bylaw dealing with director nominations may not limit the board's power to amend, add, or repeal to ensure an orderly process. Thus, if shareholders approve a bylaw amendment that limits further board changes, the board could only amend or add to the bylaw to safeguard the voting process; it could not repeal the shareholder-approved bylaw.

Termination of LLP Status

The cancellation of a statement of qualification transforms the LLP into a simple partnership but does not trigger dissolution. RUPA 201(b). The state may revoke the statement of qualification of an LLP for the failure to file an annual report; this revocation has the same effect as cancellation. RUPA 1003(c), (d).

Larceny Asportation

The carrying away requirement (also known as "asportation") is satisfied by even a slight movement of the property (e.g., inches).

Attenuation principle

The chain of causation between the primary taint and the evidence has been so attenuated as to "purge" the taint. Both the passage of time and/or intervening events may attenuate the taint.

Corporate officers and financial reports

The chief executive officer (CEO) and chief financial officer (CFO) of a publicly traded corporation must certify the accuracy of the corporation's financial reports that are filed with the SEC. Sarbanes-Oxley Act 302. In addition to facing criminal penalties for filing a false report, when financial reports must be restated because of such misconduct, a CEO and CFO must forfeit incentive-based pay and must return profits from stock sales for one year. Sarbanes-Oxley Act 304.

Doctrine of Advancement - Burden

The child had the burden of demonstrating that the lifetime transfer was intended to be an absolute gift that was not to be counted against the child's share of the estate.

Seizure of Property

The classic application of the Takings Clause is the seizure of private property for governmental use, such as acquiring privately held land in order to construct a courthouse or other government building. In such a case, the property owner's primary challenge to the seizure is whether he has received just compensation (see §XV.C., Just Compensation, infra).

Gift of securities - post-death changes

The classification of a gift controls the disposition of any income earned on the gift after the testator's death. Specific bequests carry with them all post-death income, such as interest, dividends, and rent. General bequests carry with them interest earned on the amount bequeathed beginning one year after the decedent's death, at a rate set by statute. Residual bequests are not interest-bearing.

Attorney-Client Privilege Holder

The client holds the privilege and is the only one who may waive it. The attorney, however, must assert the privilege on the client's behalf to protect the client's interests. The privilege exists until it is waived, and it can survive the client's death.

Commingling trust funds

The common-law approach required each trust fund to be separated from other trust funds and from the trustee's own funds. To decrease costs and increase diversity, the modern trend is to allow some commingling of trust funds and investment in mutual funds. If a trustee commingles trust assets with his own property and some property is lost or destroyed, however, there is a presumption that the lost or destroyed property was the trustee's and that the remaining property belongs to the trust. Additionally, if one part of the commingled assets increases in value and another part decreases in value, there is a presumption that the assets with increased value belong to the trust and that the assets with decreased value belong to the trustee.

Children born out of wedlock under intestacy

The common-law rule was that if a child was born out of wedlock, then she could not inherit from her natural father. The modern trend adopted by most jurisdictions is that an out-of-wedlock child cannot inherit from her natural father unless: i) The father subsequently married the natural mother; ii) The father held the child out as his own and either received the child into his home or provided support; iii) Paternity was proven by clear and convincing evidence after the father's death; or iv) Paternity was adjudicated during the lifetime of the father by a preponderance of the evidence. It has been held unconstitutional to deny inheritance rights to a nonmarital child when the father's paternity was adjudicated during his lifetime. See Trimble v. Gordon, 430 U.S. 762 (1977); Reed v. Campbell, 476 U.S. 852 (1986). The current trend is to allow more ways for illegitimate children to prove parentage after the alleged parent is deceased.

Attorney-Client Communication

The communication must be for the purpose of seeking legal advice or representation, but the attorney does not need to give advice or agree to the representation for the privilege to exist.

Attorney-Client Confidentiality

The communication must be intended to be confidential in order to be privileged. A communication made in the presence of a third party generally is not privileged, but the presence of, or communication by or through, a representative of the client or the attorney does not destroy the attorney-client privilege.

Indefinite beneficiaries

The community at large, or a class comprising unidentifiable members, not a named individual or a narrow group of individuals, must be the beneficiary of a charitable trust. It is possible that a very small class could still qualify as a charitable beneficiary. Further, even though the direct beneficiary may be a private individual, a charitable trust may be found when the community at large is an indirect beneficiary of the trust; for example, when a trust is established to put a beneficiary through law school, but it stipulates that the beneficiary must spend a certain number of years of legal practice in the service of low-income clients.

Ex Post Facto Laws

The constitutional prohibition on an "ex post facto" law is confined to a retroactive change to a criminal or penal law. A law that is civil in purpose is treated as a criminal law only if its punitive effect clearly overrides its civil purpose. Smith v. Doe, 538 U.S. 84 (2003). Under Article I, Sections 9 and 10, a federal or state statute will be struck down as being ex post facto if it: i) Criminalizes an act that was not a crime when it was originally committed; ii) Authorizes, after an act was committed, the imposition of a more severe penalty on that act; iii) Deprives the defendant of a defense available at the time the act was committed; or iv) Decreases the prosecution's burden of proof required for a conviction to a level below that which was required when the alleged offense was committed. Collins v. Youngblood, 497 U.S. 37 (1990).

Summaries of documents as evidence

The contents of voluminous writings, recordings, or photographs may be presented in the form of a chart, summary, or calculation, if such contents cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination and copying by other parties at a reasonable time and place. The court may order the proponent to produce the originals or duplicates in court. Fed. R. Evid. 1006.

Partnership's post-dissociation actions

The continued use of a partnership name, including a name that includes the dissociated partner, does not automatically make the dissociated partner liable for the debts of the continuing business.

Amendment of articles

The corporation can amend its articles with any lawful provision. The procedure for securing approval to amend the articles of incorporation varies depending on whether the corporation has issued stock. Once the necessary approval is obtained, articles of amendment must be filed with the state.

Liability for pre-incorporation contract by adoption

The corporation can be liable when the corporation adopts the contract. Adoption of a contract can be express or implied. Adoption takes place when the corporation accepts the benefits of the transaction or gives an express acceptance of liability for the debt, such as through board resolution after incorporation.

Corporate name

The corporation's name must contain the word "corporation," "company," "incorporated," "limited," or an abbreviation thereof.

Probate Jurisdiction

The county in which the decedent was domiciled at the time of his death has jurisdiction over the decedent's personal property and over any real property within that jurisdiction. Most jurisdictions require that notice be given to interested parties before the administrator is appointed. Ancillary jurisdiction applies to real property located in another jurisdiction for the purpose of protecting local creditors and ensuring adherence to the jurisdiction's recording system.

Removal of a trustee

The court has the power to refuse to appoint or to remove a trustee if the purposes of the trust would be frustrated by the trustee's appointment or continuance in office. Absent an express provision in the trust instrument to the contrary, neither the settlor nor the trust beneficiaries are entitled to seek the removal of a trustee. A trustee may be removed by the court under the following circumstances: i) The trustee becomes incapable of performing his duties; ii) The trustee materially breaches one or more of his duties; iii) A conflict of interest arises; iv) A serious conflict between the trustee and one or more beneficiaries, or between co-trustees, develops; or v) The trust is persistently performing poorly as a result of the trustee's actions or inactions. If any of the foregoing circumstances exist at the time the trustee is named and are known by the settlor, they will not necessarily suffice as grounds for removal. A trustee who has resigned or has been removed must expeditiously deliver the trust property within the trustee's possession to the co-trustee, successor trustee, or other person entitled to the trust property. A trustee who has resigned or has been removed has the duties of trustee and the powers necessary to protect the trust propertyunless a co-trustee remains in the office of trustee or the court orders otherwiseand until the trust property is delivered to a successor trustee or other person entitled to the trust property.

Justiciability and declaratory judgments

The courts are not prohibited from issuing declaratory judgments, however, that determine the legal effect of proposed conduct without awarding damages or injunctive relief. The challenged action must pose a real and immediate danger to a party's interests for there to be an actual dispute (as opposed to a hypothetical one).

Corporate dissolution distribution

The directors of a corporation are responsible for distribution of the corporate assets and may be liable for improper distributions. Such assets must be distributed in the following order: i) To creditors of the corporation to pay the debts and other obligations of the corporation, including bona fide obligations owed to shareholders; ii) To shareholders of stock with preferences in liquidation; and iii) To shareholders of other stock. RMBCA § 14.09.

Monuments on public property

The display of a monument on public property, even if the monument has been donated by a private person, constitutes government speech. Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government installed a Ten Commandments monument donated by a private person in a public park; the Court held that governmental entities may exercise "selectivity" in choosing a monument being offered by a private donor).

Valuation of dissociated partner interest

The dissociated partner's interest is valued as if the partnership business was wound up on the date of the dissociation. For this purpose, the partnership is valued as the greater of either the liquidation value of its assets or the value of the partnership as a going concern. RUPA 701(b).

Property placed in a trust

The distribution upon death of property placed in a trust by an individual during her lifetime is determined by the terms of the trust, not the terms of the individual's will or the intestate rules. The trust can be structured so that the creator (settlor) of the trust serves as the manager (trustee) of the trust and the beneficiary of the trust during the creator's lifetime, and provide for the continued management of the trust property by a trustee or its distribution upon the creator's death. Consequently, a trust can function much like a will. Nevertheless, the creation of trust is not subject to the requirements for the execution of a will, such as attesting witnesses.

Ademption by Extinction

The doctrine of ademption applies only to specific bequests. If the subject matter of a specific bequest is missing or destroyed ("extinct"), then the beneficiary takes nothing, not even the insurance proceeds or the equivalent in cash. This rule does not apply when the testator was incompetent, unless the will was executed prior to the incompetency.

Doctrine of Advancements

The doctrine of advancements usually applies only to intestate succession. However, there is some authority for the proposition that the doctrine of advancements would apply if a will leaves property to the testator's heirs.

Doctrine of Renvoi

The doctrine of renvoi requires that a forum court that is applying the law of another state to decide a matter also apply that foreign state's conflict-of-laws rules. Such rules might require the forum state to refer to its own law (this is known as remission) or to the laws of another state (this is known as transmission). Theoretically, this could result in a vicious circle with no state's internal laws being able to be applied.

Shareholder oppression doctrine

The doctrine of shareholder oppression protects the minority from the improper exercise of majority control. Recent cases have made involuntary dissolution easier by interpreting statutory provisions regarding involuntary dissolution to refer to protecting the reasonable expectations of the shareholders in the corporation. Matter of Kemp & Beatley, Inc., 473 N.E.2d 1173 (N.Y. 1984). Other courts have indicated that dissolution should be considered in light of the feasibility of protecting the expectations the parties originally had with regard to agreements about various forms of compensation. Meiselman v. Meiselman, 307 S.E.2d 551 (N.C. 1983).

Trust interests appointable

The donee of a power of appointment can direct the appointment of an interest of equal or lesser value to that specified in the power given to her. Thus, if a donee can appoint trust assets outright, she can also give, for example, a life estate to a permissible beneficiary.

Search of Car's VIN

The driver of a car does not have a reasonable expectation of privacy in the vehicle identification number (VIN) affixed to an automobile. New York v. Class, 475 U.S. 106 (1986). Consequently, a police officer's moving of papers that obstructed his view of this number did not constitute a search under the Fourth Amendment, and a gun found while doing so was admissible into evidence.

Timing of partner duties

The duties of loyalty and care generally apply only to partners. RUPA 404(b), (c), (g), inc. cmt. 2.

Board of Directors duty of loyalty

The duty of loyalty requires a director to act in a manner that the director reasonably believes is in the best interests of the corporation. RMBCA §8.60. Typically, a director breaches this duty by placing his own interests before those of the corporation.

Satisfying an elective share

The elective share is satisfied first from property already received by the surviving spouse, then from the rest of the estate. Life estates granted to the surviving spouse are considered support and do not count in the valuation. Unif. Probate Code § 2-209.

Embezzlement lawful possession

The embezzler must be in lawful possession of the property at the time that the intent to defraud occurs, although some states limit embezzlement to property entrusted to the embezzler.

Solicitation - Encouragement

The encouragement may take the form of enticement, incitement, request, or command. The crime is completed upon the encouragement. The other person need not agree to commit the crime.

Writing signed by the testator

The entire will must be in writing and must be signed by the testator or by some other person in his presence and at his direction. Oral wills are not permitted under the UPC. Some states require the signature to be at the end of the will, whereas others (and the UPC) allow the signature on any part of the will. In these states, while a signature elsewhere will not invalidate the will, any language appearing after the signature will be held invalid.

Events causing dissolution of partnership

The events that may trigger dissolution differ depending on whether the partnership is a partnership at will or one for a definite term or particular undertaking. RUPA801.

Independent source doctrine

The evidence was discovered in part by an independent source unrelated to the tainted evidence.

Memory loss by prosecution witness

The fact that a witness has a memory loss does not by itself violate the Confrontation Clause. Delaware v. Fensterer, 474 U.S. 15, 19-20 (1985). The Supreme Court has held that the Confrontation Clause does not bar testimony concerning a prior out-of-court identification when the identifying witness is unable, because of memory loss, to explain the basis for the identification. A defendant may conduct an effective cross-examination if given the opportunity to address the very fact of the poor memory of the witness. United States v. Owens, 484 U.S. 554, 564 (1988).

Speedy trial balancing test

The factors to be considered in determining whether the defendant has been deprived of a speedy trial post-accusation are the: i) Length of the delay; ii) Reason for the delay; iii) Defendant's assertion of a right to a speedy trial; and iv) Prejudice to the defendant. Courts weigh these factors and determine whether the state made a "diligent, good-faith effort" to bring the defendant to trial. Barker v. Wingo, 407 U.S. 514, 530 (1972). A delay caused by the inaction of an attorney assigned by the state to represent the defendant may be attributable to the defendant, but a delay caused by the court's failure to promptly appoint replacement counsel when an assigned attorney withdraws or by a breakdown in the public-defender system is attributable to the state. Vermont v. Brillon, 556 U.S. 81 (2009).

Use of statements taken in violation of Miranda

The failure to give Miranda warnings is not a violation until a statement obtained without the use of warnings is used at trial. Chavez v. Martinez, 538 U.S. 760 (2003).

Failure to hold annual shareholder meeting

The failure to hold the annual meeting does not affect the existence of the corporation or invalidate any business conducted by the corporation. RMBCA §7.01(c). A shareholder may seek a court order compelling the corporation to hold an annual or a special meeting. RMBCA § 7.03.

Director self-dealing and fairness

The fairness test looks at the substance and procedure of the transaction. Substantively, the court determines whether the corporation received something of comparable value in exchange for what it gave to the director. Procedurally, the court determines whether the process followed by the directors in reaching their decision was appropriate. RMBCA §§8.60(5), 8.61(b)(3). Interested directors who were on both sides of the transactions in question have the burden of establishing the substantive and procedural fairness of the transactions. HMG/Courtland Properties, Inc. v. Gray, 749 A.2d 94, 115 (Del. Ch. 1999).

Judicial Action to Remedy Constitutional Violations

The federal judiciary has broad equitable powers in fashioning a remedy for a constitutional violation. For example, while a court may not directly impose a tax in order to fund a racial-discrimination remedy, it may order a local government with taxing authority to levy such a tax, and it may do so despite a state statutory limitation that would otherwise prevent such action. Missouri v. Jenkins, 495 U.S. 33 (1990).

Judicial review of state actions

The federal judiciary has the power, under the Supremacy Clause (Article VI, Section 2), to review state actions (e.g., court decisions, state statutes, executive orders) to ensure conformity with the Constitution, laws, and treaties of the United States. Fletcher v. Peck, 10 U.S. 87 (1810).

Events trigger partner disassociation

The following events trigger a partner's dissociation from the partnership: i) The partner's notice to the partnership of the partner's express will to withdraw; ii) An occurrence specified in the partnership agreement; iii) The expulsion of the partner pursuant to the partnership agreement; iv) The expulsion of the partner by the unanimous vote of the other partners, if it is unlawful to carry on the partnership business with that partner; v) The expulsion of the partner by court order because the partner has either (i) engaged in misconduct that adversely and materially affected the partnership business, (ii) willfully and persistently caused a material breach of the partnership agreement, or (iii) breached a duty owed to the partnership or other partners; vi) The partner's voluntary or involuntary bankruptcy, a general assignment of the partner's interest for the benefit of the partner's creditors, or appointment of a trustee, receiver, or liquidator of the partner's property; vii) The partner's death; viii) The appointment of a guardian or general conservator for the partner, or a specific judicial determination that the partner has become incapable of performing his duties under the partnership agreement; or ix) The termination of an entity partner (such as a limited liability company), or the distribution by an estate or a trust of the partnership interest. RUPA 601.

Rule 10b-5 action

The fraudulent purchase or sale of any stock or other security (e.g., bonds, stock options, and warrants) can give rise to a Rule 10b-5 action. For a private person to pursue a Rule 10b-5 action, each of the following requirements must be met: i) The plaintiff purchased or sold a security; ii) The transaction involved the use of interstate commerce; iii) The defendant engaged in fraudulent or deceptive conduct; iv) The conduct related to material information; v) The defendant acted with scienter, i.e., with intent or recklessness; vi) The plaintiff relied on the defendant's conduct; and vii) The plaintiff suffered harm because of the defendant's conduct.

Religious Belief and court review

The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law. The government may not deny benefits or impose burdens based on religious belief, Cantwell v. Connecticut, 310 U.S. 296 (1940); it may not require affirmation of a belief, West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); and it may not determine the reasonableness of a belief, although it may determine the sincerity of the person asserting that belief, United States v. Ballard, 322 U.S. 78 (1944). When there is a property dispute between two religious groups, a court may not decide questions of religious doctrine, but may apply religiously neutral principles of law to resolve the dispute. Jones v. Wolf, 443 U.S. 595 (1979).

Fruits of the poisonous tree and Sixth Amendment

The fruit of the poisonous tree doctrine is applicable to violations of the Sixth Amendment right to counsel. Nix v. Williams, 467 U.S. 431 (1984). Both statements and physical evidence obtained as a result of a Sixth Amendment violation are inadmissible.

Due Process - parental rights

The fundamental parental right to make decisions regarding the care, custody, and control of one's children includes the right to privately educate one's child outside the public school system subject to reasonable educational standards imposed by the state, Pierce v. Society of Sisters, 268 U.S. 510 (1925), Wisconsin v. Yoder, 406 U.S. 205 (1972), and to limit visitation of grandparents, Troxel v. Granville, 530 U.S. 57 (2000).

Community Property

The general intestate distribution scheme presumes that the jurisdiction does not recognize community property. Community property considers all property acquired during a marriage as jointly owned by the parties unless it is a gift, inheritance, or devise given to only one spouse. In a community property jurisdiction, the community property of the decedent is divided equally, and 50% of the community property is given to the surviving spouse. If the decedent was intestate, then the surviving spouse generally receives the decedent's remaining 50% share of the community property. The decedent's separate property is then distributed pursuant to the general intestacy scheme.

Spousal Immunity

The general rule is that the spouse of a criminal defendant may not be called as a witness by the prosecution. Nor may a married person be compelled to testify against his spouse in any criminal proceeding, including a grand jury proceeding, regardless of who is the defendant. The spousal immunity privilege applies to testimony about events that occurred before and during the marriage. The spousal immunity privilege can be asserted only during a valid marriage. The right to assert the privilege expires upon divorce or annulment. In federal courts (and a majority of states), the witness spouse holds the privilege and may choose to testify but cannot be compelled to do so.

Good-faith exception to invalid warrant

The good-faith exception applies to police officers who act in good faith on either a facially valid warrant later determined to be invalid or an existing law later declared unconstitutional. Michigan v. DeFillippo, 443 U.S. 31 (1979). Good faith is limited to the objective good faith of a reasonable police officer. This exception does not apply if: i) No reasonable officer would rely on the affidavit underlying the warrant; ii) The warrant is defective on its face; iii) The warrant was obtained by fraud; iv) The magistrate has "wholly abandoned his judicial role"; or v) The warrant was improperly executed.

Appeal by the prosecution and double jeopardy

The government may appeal an adverse ruling in a criminal case only when authorized by statute. If the trial judge grants an acquittal on an issue that does not relate to the defendant's guilt or innocence, such as the failure to give the defendant a speedy trial, then the prosecution may appeal and, if the appeal is successful, the defendant may be retried. In addition, a prosecutor may appeal an order dismissing an indictment or suppressing evidence, a bail determination, the sentence imposed on a defendant, and a post-verdict new-trial order.

Funding of private messages

The government may fund private messages. However, it must generally do so on a viewpoint-neutral basis. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). The exception to this is when the government decides to fund artists; the decision of which artist to fund is necessarily based on the content of the artist's work. National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).

Contributions to PACs

The government may limit contributions to a political action committee (PAC). California Medical Assn. v. FEC, 453 U.S. 182 (1981).

Contributions to political parties

The government may limit contributions to a political party that are used to expressly advocate for the election or defeat of a particular candidate (also known as "hard money") as well as contributions that are used for other purposes, such as promoting the party itself (also known as "soft money"). McConnell v. Federal Election Commission, supra. In addition, the government may require a political party to disclose contributors and recipients unless the party can show that such disclosure would cause harm to the party. Brown v. Socialist Workers '74 Campaign Committee, 454 U.S. 112 (1982).

Standard of Review for Fourth Amendment Exclusion

The judge, not the jury, resolves suppression issues raised by a pretrial motion to suppress. A pretrial motion to suppress often involves a mixed question of fact and law. On appeal, the judge's rulings as to questions of law are reviewed de novo; factual findings are reviewed only for clear error. Ornelas v. United States, 517 U.S. 690 (1996).

Contributions to candidates

The government may limit contributions to individual candidates because excessive contributions to candidates create a danger of corruption and the appearance of corruption. Buckley v. Valeo, 424 U.S. 1 (1976). However, because aggregate limits on the amount a donor may contribute to candidates for federal office, political parties, and political action committees restrict participation in the political process and do little to further the prevention of "quid pro quo" corruption or the appearance of such corruption in campaign financing, they are invalid under the First Amendment. McCutcheon v Federal Election Commission, 572 U.S. ___, 134 S. Ct. 1434 (2014). Limits on campaign contributions to candidates for state office ranging from $275 to $1,000 have been upheld. Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000). However, the government cannot set differential contribution limits that penalize a candidate who finances his own campaign. Davis v. Federal Election Commission, 554 U.S. 724 (2008).

Limits on administrative searches

The government may not use administrative searches to investigate criminal activity. However, discovery of evidence during the search does not invalidate the search. The following administrative-type searches may be validly made without a warrant: i) Searches of people entering an airplane boarding area, as long as the passenger can prevent the search by not boarding the plane; ii) Searches of businesses in highly regulated industries such as liquor stores, gun shops, strip-mining operations, and automobile junkyards, because of urgent public interest and under the theory that the business impliedly consented to warrantless searches by entering into a highly regulated industry; iii) Oral statements seized by wiretaps, when matters of national security are at issue; iv) Searches of students by public school officials, so long as they are based on reasonable grounds (this standard is lower than probable cause and calls for only a "moderate chance" of finding the expected evidence, rather than a "fair probability" or "substantial chance"), and the measures adopted for the search are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. New Jersey v. T.L.O., 469 U.S. 325, 340-341 (1985); Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 370-371 (2009). v) Special needs searches, such as drug testing for railroad employees involved in an accident or student athletes during the athletic season. To be a special need, the state interest must be a real, current, and vital problem that can be effectively addressed through the proposed search. Even if the need exists, it must be balanced against the privacy interest at stake and the character of the intrusion. Bd. of Educ. v. Earls, 536 U.S. 822, 829 (2002); vi) Inventory searches of items in official custody, such as impounded vehicles. After lawfully taking custody of property, police may conduct a warrantless search of other property to protect the owner's property while in custody, to protect police from claims of theft, and to protect officers from danger. Inventory searches must be performed according to standardized criteria and procedures. Subjective intent of the officer is irrelevant; vii) Routine international border searches of border crossers and their belongings within the United States, including (i) stops, but not searches, by roving patrols who reasonably suspect that undocumented immigrants may be in an automobile, (ii) opening of international mail if authorities have reasonable cause to suspect contraband in the mail, and (iii) subsequent reopening of mail after the item had been resealed and delivered to the recipient; viii) Vehicle checkpoints and roadblocks set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile's inherent mobility (e.g., to get drunk drivers off the road); ix) Factory searches of the entire work force to determine citizenship of workers; x) Searches of government employees' electronically recorded documents and conduct, file cabinets, and desks if they are justified by a reasonable suspicion of work-related misconduct or a non-investigatory, work-related need; xi) Detention of a traveler whom authorities have reasonable suspicion is smuggling contraband in his stomach; xii) Searches of parolees and their homes, even with no reasonable suspicion, when a parolee agrees to submit to searches by a parole officer or police officer at any time as a condition of his parole. The rationale being that because there is a greater need to search parolees since they are less likely to be law-abiding citizens, a parolee has a lower expectation of privacy; xiii) Seizure of contaminated or spoiled food; and xiv) Searches for the cause of a fire that occurs within a reasonable time after the fire is extinguished, but excluding searches for other evidence unrelated to the cause that would establish that the fire was attributable to arson. Michigan v. Clifford, 464 U.S. 287 (1984) (search of home); Michigan v. Tyler, 436 U.S. 499 (1978) (search of business (furniture store)).

Governmental Privilege

The government, at all levels, is privileged against disclosing: i) The identity of an informant in a criminal case; and ii) The communication of official information (i.e., information that relates to the internal affairs of the government and is not open to the public) by or to public officials.

Takings and public peril

The governmental destruction of private property in response to a public peril does not trigger the right to compensation.

Contracts and Governmental-Interest Approach

The governmental-interest approach does not change based on substantive areas of law.

Intangible Property and Governmental-Interest Approach

The governmental-interest approach does not change based on substantive areas of law.

Property and Governmental-Interest Approach

The governmental-interest approach does not change based on substantive areas of law.

Real Property and Governmental-Interest Approach

The governmental-interest approach does not change based on substantive areas of law. See § II.B.3 Governmental-Interest Approach, supra, for the rules governing the governmental-interest approach. Note, though, that under the governmental-interest approach, less importance is placed on the situs than under the other two major choice-of-law approaches. If another state has a more significant relationship to the case, then its law will prevail.

Grand Jury role

The grand jury has subpoena power to investigate matters before it or to initiate criminal proceedings. The subpoena can be quashed by the opposing party if he can demonstrate that the evidence sought is not relevant to the investigation. However, the witness or defendant cannot attack the subpoena based on the grand jury's lack of probable cause. The grand jury is not restricted to hearing evidence that would be admissible at trial; an indictment may generally be based on hearsay or illegally obtained evidence. United States v. Calandra, 414 U.S. 338, 348 (1974) (illegally seized evidence admissible in grand jury proceeding); Costello v. United States, 350 U.S. 359 (1956) (hearsay evidence admissible in grand jury proceeding). (Note: By federal statute, information obtained from an illegal wiretap cannot be presented to a grand jury. 18 U.S.C. 2515.) The grand jury may not exclude members of minority races, regardless of whether they are the same race as the defendant. Such exclusion will lead to a reversal of the indictment without regard to the harmlessness of the error. Campbell v. Louisiana, 523 U.S. 392 (1998); Vasquez v. Hillery, 474 U.S. 254 (1986).

Defendant's Rights and Grand Jury

The grand jury is a non-adversarial proceeding. The proceedings are conducted in secret, and the defendant has no right to present or confront witnesses or to introduce evidence. The defendant is not entitled to a dismissal due to a procedural defect in grand jury proceedings, unless the defect substantially impacted the grand jury's decision to indict. However, the defendant (or any other witness) may make a motion to seal the grand jury report if he believes that he has been defamed.

Standing - Injury in fact

The injury must be both concrete and particularized.

Standing and type of injury

The injury need not be physical or economic. United States v. SCRAP, 412 U.S. 669 (1973). While a generalized harm to the environment does not confer standing, a harm that affects recreational "or even mere esthetic interests," that is sufficient. See Summers v. Earth Island Inst., 555 U.S. 488 (2009).

Time and Place limits on inspection of corporate records

The inspection right is usually restricted to normal business hours at the corporation's principal place of business. Five days' advance written notice is required. RMBCA § 16.02.

Ademption - "identity theory"

The intent of the testator is not relevant in most states if the bequest is extinct. If the specifically bequeathed item is not a part of the estate at the testator's death, then it is adeemed. A substantial change in the nature of the subject matter of a bequest will operate as an ademption, but a merely nominal or formal change will not. Courts are inclined to avoid ademption by a variety of means, including the classification of a specific bequest as general or demonstrative, the classification of an inter vivos distribution as a mere change in form, and the creation of other exceptions to the doctrine.

Private Express Trust - ambiguous language

The intent to create a trust differs only slightly from the intent to make a gift. A determination must be made regarding whether a bifurcated transfer was intended and, if so, whether the intent was more than a mere hope or wish.

Larceny time for measuring intent

The intent to permanently deprive is generally measured at the time of the taking. The continuing-trespass rule may apply to stretch the time at which intent is measured.

Investigatory Power Scope

The investigatory power may extend to any matter within a "legitimate legislative sphere." According to the Speech and Debate Clause of Article I, Section 6, members of Congress cannot be questioned in regard to activities such as speech or debate taking place during a session in either House of Congress in relation to the business before it. This provides an absolute immunity from judicial interference. Eastland v. Unites States Servicemen's Fund, 421 U.S. 491 (1975).

Judicial review of congressional and executive actions

The judiciary has the power—although it is not enumerated in the text of the Constitution—to review an act of another branch of the federal government and to declare that act unconstitutional, Marbury v. Madison, 5 U.S. 137 (1803), as well as the constitutionality of a decision by a state's highest court, Martin v. Hunter's Lessee, 1 Wheat. 304 (1816). The central ideas of Marbury v. Madison are that (i) the Constitution is paramount law, and (ii) the Supreme Court has the final say in interpreting the Constitution.

Partnership test

The key test applied to ascertain whether a business arrangement is a partnership is whether there is a sharing of the profits from the business; if so, such an arrangement generally is presumed to be a partnership, and persons who share in the profits are partners. RUPA 202(c)(3). [Note: The sharing of gross returns rather than profits does not create such a presumption. RUPA202(c)(2).]

Slayer statute - intentional and felonious

The killing must have been intentional and felonious to bar the killer from taking. For example, involuntary manslaughter and self-defense killings do not fall within the homicide doctrine, although assisted suicide killings do. If a conviction fails, the court nonetheless may make a determination as to the lawfulness of the killing, using a preponderance of the evidence standard. Killings that were not intentional and felonious may result in the court imposing a constructive trust.

Due Process - Abortion generally

The landmark case of Roe v. Wade, 410 U.S. 113 (1973), established the principle that a woman has a fundamental right to an abortion. The Court acknowledged that this privacy right must be considered along with the state's compelling interests in protecting both the health of the pregnant woman and the potential life of the fetus. The resulting rule allowed for varying degrees of state restriction based on the trimester of the pregnancy. The decades since Roe have resulted in numerous, often conflicting, judicial opinions on the subject. The current standard is the "undue burden" test, the meaning of which depends on whether the fetus is viable (likely to survive outside the womb).

Workers' Compensation and Employer Immunity

The law is currently unclear as to whether an employee is permitted to bring a tort or wrongful-death action against an employer from whom the employee has already been awarded damages in a workers'-compensation action in another state if the workers'-compensation statute of the other state grants the employer immunity from tort liability. A plurality of the U.S. Supreme Court has held that a state may grant supplemental workers'-compensation benefits to an employee who previously received such benefits against the same person under another state's workers'-compensation statute. See Thomas v. Washington Gas Light, 448 U.S. 261 (1980). As noted above, the second state is required to credit the amount awarded by the first state in order to avoid a double recovery. Immunity is generally given only to the employer under a state's workers'-compensation act. Thus, other parties, such as manufacturers of defective equipment, could be liable in tort despite the workers'-compensation award. See Carroll v. Lanza, 349 U.S. 408 (1955). A third party that is held liable in tort will generally not be permitted to seek indemnification from the injured employee's employer who has complied with the state's workers'-compensation statute.

Due Process - Strict Scrutiny

The law must be the least restrictive means to achieve a compelling governmental interest.

Equal Protection Strict Scrutiny

The law must be the least restrictive means to achieve a compelling governmental interest.

Limited partnership effective date

The limited partnership comes into existence upon the filing of the certificate unless the certificate specifies a later date. RULPA 201(b).

Peremptory challenge and constitutional right

The loss of a peremptory challenge does not violate the right to an impartial jury. Ross v. Oklahoma, 487 U.S. 81, 88 (1988). A defendant's exercise of peremptory challenges is not denied or impaired when the defendant chooses to use such a challenge to remove a juror who should have been excused for cause. United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000).

Partial Revocation of Will

The majority of jurisdictions and the UPC permit partial revocation to revoke a provision of a will. The majority of jurisdictions provide that if the revoked gift falls outside of the residuary, it is not given effect until re-execution (signed again) or republication (new document) of the will. The UPC, however, provides that partial revocation is permissible regardless of the effect, even if it increases a gift outside of the residuary clause. Unif. Probate Code § 2-507(d).

Stepparent exception to adopted issue

The majority of jurisdictions, including the UPC, modify the general rule regarding adoptions when the adoption is by a stepparent. The adoption does sever the parent-child relationship with either natural parent, essentially replacing the child's family with a "fresh start." The adoption does not curtail the parent-child relationship or the inheritance rights of a natural parent who is married to the stepparent. Rather, the adoption establishes a parent-child relationship between the stepparent and child, including full inheritance rights in both directions. However, a parent-child relationship still does exist with the other genetic parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to inherit from or through that other genetic parent. Unif. Probate Code § 2-119(b). A minority of jurisdictions hold that the parent-child relationship with the natural parent is entirely severed. See e.g., Hall v. Vallandingham, 540 A.2d 1162 (Md. Ct. Spec. App. 1988) (holding that an adopted child is no longer considered a child of either natural parent and loses all rights of inheritance from the natural parents).

Entrapment - Subjective approach

The majority of states and the U.S. Supreme Court have adopted the subjective test for entrapment. Under this approach, the focus is on the defendant. Entrapment occurs when (i) the crime is induced by a government official or agent, and (ii) the defendant was not predisposed (i.e., ready and willing) to commit the crime. If a defendant is predisposed to committing the crime, then the entrapment defense is not available, even if the government agent has engaged in misconduct, such as by supplying contraband. Hampton v. United States, 425 U.S. 484 (1976).

Takings Clause

The power of the government to take private property for public purposes is known as "eminent domain." The Takings Clause of the Fifth Amendment acts as a check on this power; it provides that private property may not "be taken for public use, without just compensation." The Fourteenth Amendment Due Process Clause makes the Takings Clause applicable to the states.

Testator Insane Delusion Test

The majority rule is that a belief is an insane delusion if a rational person in the testator's situation could not have reached the same conclusion. Once it is determined that the testator suffered from an insane delusion, it must be shown that this was the sole cause of the testamentary disposition. The majority view requires "but for" causation, such that the testator would not have disposed of the property in the same manner but for the insane delusion.

Revocation of Will - Defacement Requirement

The majority rule is that an effective canceling of a will requires defacement of the language of the will (i.e., at least some of the language must be crossed out, including the signature). The UPC, however, rejects the majority rule and requires that the destructive act merely affect some part of the will. Unif. Probate Code § 2-507(a)(2). Some states require that the method of revocation be of a type specified by statute; any other non-specified method will be ineffective.

Will Witness Signatures

The majority view is that a will must be signed in the joint presence of, and attested to by, two witnesses. There are jurisdictional differences as to the number of witnesses (e.g., some states require three). An attestation clause is not required, but it can be helpful to prove due execution of the will in cases in which the witness has no memory of signing or has a faulty memory. Also, the witnesses need not sign at the end of the will. Will execution statutes commonly provide that another person may sign a testator's will if it is done at the testator's direction and in the testator's presence. Under the UPC, the witnesses, all of whom need not be present at the same time, must sign the will within a reasonable time after witnessing the testator sign or acknowledge the will. Unif. Probate Code § 2-502(a)(3). Some courts have found that the testator's request that the two witnesses sign can be implied and does not have to be explicit. See In re Estate of Graham, 295 N.W.2d 414 (Iowa 1980). Note that the witnesses do not necessarily have to sign in each other's presence.

Failure to report a crime

The mere failure to report a crime is not generally itself a crime. However, a person who gives false information to the police in order to prevent the apprehension of a felon can be an accessory after the fact.

Will Witnesses - Conscious-presence test

The modern approach, known as the "conscious-presence" test, is broader than the line-of-sight test. The conscious-presence test requires only that the party observing the act, either testator or witness, be aware that the act is being performed. This method is endorsed by the UPC only for situations in which the will is signed by another person on behalf of the testator. Unif. Probate Code §2?502(a)(2). When a testator acknowledges her signature to witnesses over the telephone, courts have held that this does not satisfy the "conscious-presence" requirement—the witness must either observe the testator signing the will or observe the testator's acknowledgment of her will. See In re Estate of McGurrin, 743 P.2d 994 (Idaho Ct. App. 1987).

Trust and reversion interests

The most common future interest in the grantor is a reversion, in which the grantor has the right to possess the property after a finite estate ends. At common law, the three finite estates were the life estate, the estate for a term of years, and the fee tail. If the grantor does not convey his entire interest but does not explicitly retain an interest, then a reversionary interest is implied.

Statute of Limitations and Most-Significant-Relationship Approach

The most-significant-relationship approach of the Restatement (Second) of Conflict of Laws applies to statute of limitations issues. See § II.B.2 Most-Significant-Relationship Approach, supra. Under this approach, the forum will apply its own state's statute of limitations barring the claim, unless (i)maintenance of the claim would serve no substantial interest of the forum, and (ii) the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence. Restatement (Second) of Conflict of Laws § 142 (1988 Revision).

LLP Name

The name of an LLP must end with "Registered Limited Liability Partnership," "Limited Liability Partnership, "R.L.L.P.," "L.L.P.," "RLLP," or "LLP." RUPA 1002.

Exceptions to Omitted Children

The omitted child statute does not apply if: i) It appears that the omission of the child was intentional; ii) The testator had other children at the time the will was executed and left substantially all of his estate to the other parent of the pretermitted child; or iii) The testator provided for the child outside of the will and intended this to be in lieu of a provision in the will. Mention of a child in only one of two instruments that are being read together or the republication of a will by codicil after the birth of a child will preclude that child from claiming as an omitted heir, although this rule is flexibly applied.

Partnership agreement

The only agreement necessary to create a partnership is the agreement to conduct a for-profit business as co-owners. Such an agreement may even be implied by the conduct of the parties when they have not entered into a written or oral agreement. RUPA 101(7).

Robbery from the person or presence

The property taken must be on the victim's person or within the victim's reach or control (i.e., in the presence of the victim). For example, if a victim is restrained by the defendant within the victim's home prior to the seizure of the property, items taken from the entire house can be treated as "from the victim's presence."

De facto corporation

The owner must make a good-faith effort to comply with the incorporation requirements and must operate the business as a corporation without knowing that these requirements have not been met. If the owner has done so, then the business entity is treated as a de facto corporation, and the owner, as a de facto shareholder, is not personally liable for obligations incurred in the purported corporation's name. Note, however, that the RMBCA has abolished this doctrine, as have many of the jurisdictions that have adopted the RMBCA. See, e.g., In re Estate of Woodroffe, 742N.W.2d94 (Iowa 2007).

Due Process - public office and property ownership

The ownership of property cannot be made a condition of holding public office. Turner v. Fouche, supra (appointment to local school board).

Parentelic approach

The parentelic approach follows collateral lines until a live taker is found, at which point the decedent's property is distributed within that taker's parentelic line. A decedent's estate would first pass to the decedent's parents and their issue (the decedent's siblings); if there are none, then to the decedent's grandparents and their issue (aunts, uncles, and cousins), and so on.

Ancestors and Combined Approach

The parentelic approach is used as a tiebreaker in the event that the degree-of-relationship approach results in a tie between multiple living takers sharing the same lowest degree of relationship. Those in the closer collateral line take to the exclusion of those in the more remote collateral line.

Parol Evidence Rule

The parol evidence rule operates to exclude evidence that, if introduced, would change the terms of a written agreement. The rule is based on the assumption that a written contract represents the complete agreement between the parties.

LP Profits and losses

The partners may choose to allocate profits and losses on any basis, provided such allocation is in writing. In the absence of such a written agreement, both profits and losses are allocated among the partners based on each partner's partnership contributions, provided such contributions have not been returned to the partner. RULPA 503, 504.

Partnership profits per agreement

The partnership agreement controls a partner's rights to share in the partnership's profits and losses. The agreement may specify a percentage for sharing profits that differs from the percentage for sharing losses; neither profits nor losses are required to be shared on a per capita basis. RUPA 401(b).

Per capita with representation

The per capita with representation approach divides the property equally among the first generation when at least one member survives the decedent, with the shares of each member of that generation who does not survive the decedent passing to the then-living issue of the nonliving member. If the nonliving member has no then-living issue, then the nonliving member does not receive a share.

Closing the Estate

The personal representative is expected to complete the administration and distribute the assets promptly, including paying creditors and tax collectors. Judicial approval of the personal representative's actions is required to release the personal representative from potential liability. The personal representative may receive compensation for his services. The compensation is determined by statute based on the estate's value or by the court. However, the court may deny compensation if the personal representative has breached his fiduciary duties.

Creditor Claim on Estate - Notice

The personal representative must provide notice to creditors of the estate, advising them of when and where to file claims. Failure to give the proper notice to creditors extends the time period they have to file a claim against the estate.

Fiduciary duty of personal representative

The personal representative of an estate is a fiduciary and owes the highest duty of loyalty and care to those whose interests he represents, which means that he cannot profit from the trust instilled in him. The personal representative is not discharged from his fiduciary duties until the court grants such discharge. Common law permits a personal representative to be held personally liable for the actions of the estate. Under the UPC, personal representatives can be sued in their representative capacity only for a breach of the fiduciary duty. Unif. Probate Code § 7-306.

Takings and just compensation

The phrase "just compensation" has been interpreted to mean fair market value, which is the reasonable value of the property at the time of the taking. This value is measured in terms of the loss to the owner, not the benefit to the government.

Physical conditions of incarceration

The physical conditions of incarceration amount to cruel and unusual punishment only if the prisoner can show that prison officials had actual knowledge of a substantial risk to the prisoners.

Derivative action - demand upon board

The plaintiff in a derivative action must make a written demand upon the board of directors in order to take action. A derivative action may not commence until 90days have passed from the date of demand.

Derivative action - irreparable injury excuse

The plaintiff may be excused from waiting a reasonable time for the board to respond to the demand if the delay would result in irreparable injury to the corporation. RMBCA § 7.42(2).

Rule 10b-5 - harm to the plaintiff

The plaintiff must establish that he suffered harm caused by the defendant's fraudulent conduct.

Sixth Amendment and withholding information

The police are under no obligation to inform a suspect that an attorney has been trying to reach him, and may even withhold that information intentionally, so long as the Sixth Amendment right to counsel has not yet attached. Moran v. Burbine, 475 U.S. 412 (1986). If the Sixth Amendment right has attached, this sort of interference with the attorney-client relationship might be a violation of that right.

Intentional Detention

The police officer must intentionally employ physical force or a show of authority in order for the officer's actions to result in a seizure. However, as long as the officer intentionally employs force or makes a show of authority, the officer's purpose need not be to detain the defendant in order for the defendant to be seized. Consequently, when a police officer makes a traffic stop, not only the driver but also any passengers are deemed to be seized. Therefore, the passenger as well as the driver may challenge the constitutionality of the stop. Brendlin v. California, 551 U.S. 249, 251 (2007).

Authorization of distribution by board of directors

The power to authorize a distribution rests with the board of directors. RMBCA §6.40. Having authorized a distribution and set sufficient parameters, the board may delegate to a board committee or corporate officer the power to fix the amount and other terms of the distribution. In general, a shareholder cannot compel the board of directors to authorize a distribution, because that decision is usually discretionary. When a board acts in bad faith and abuses its discretion by refusing to declare a distribution, however, a court may order the board to authorize a distribution. Dodge v. Ford Motor Co., 170 N.W. 668 (Mich. 1919).

Regulation of media generally

The press has the right to publish information about matters of public concern, and the viewers have a right to receive it. This right may be restricted only by a regulation that is narrowly tailored to further a compelling governmental interest (i.e., strict scrutiny applies).

Prima facie case for jury without representative cross-section

The prima facie case for absence of a representative cross-section can be established by showing that: i) The group allegedly excluded is a "distinctive" group in the community; ii) The group was not fairly represented in the venire from which the jury was chosen; and iii) The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process. To rebut, the prosecution must show that the disproportionate exclusion manifestly and primarily advances a significant governmental interest.

Selection of corporate officers

The primary officers of a corporation are elected by the board of directors. These officers may in turn be empowered by the board of directors or the bylaws to select other corporate officers and employees. RMBCA §8.40(b).

Intestacy policy

The primary policy involved in framing an intestacy statute is to carry out the probable intent of the average intestate decedent. The most common statutory scheme assumes that the decedent would wish for her surviving spouse to succeed to all of her property if she had no surviving issue, and otherwise to share her property with her surviving issue.

Principal Duties of personal representative

The principal duties of the personal representative are to: i) Provide notice to legatees, heirs, and claimants; ii) Inventory and collect the assets of the decedent; iii) Manage the assets during administration; iv) Receive and pay claims of creditors and tax collectors; and v) Distribute the remaining assets to those entitled thereto. The scope of power to administer the estate varies among jurisdictions. Some jurisdictions permit unsupervised administration absent special circumstances with a final accounting to the court, while others require constant supervision and authorization.

Equal Protection and voting

The principle of "one person, one vote" holds that one person's vote must be essentially equal to any other person's vote. To that end, when the government establishes voting districts for the election of representatives, the number of persons in each district must be approximately equal. Reynolds v. Sims, 377 U.S. 533 (1964). Voter approval of a redistricting plan will not justify a violation of the "one person, one vote" rule. Lucas v. Colorado General Assembly, 377 U.S. 713 (1964).

Fifth Amendment Proceedings

The privilege extends to a witness in any proceeding, whether civil or criminal, formal or informal, if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings. McCarthy v. Arndstein, 266 U.S. 34 (1924). However, the privilege cannot be invoked when the government requires civil records to be maintained and reported on for administrative purposes, because they are public records, unless those records fulfill a registration requirement of a select group of inherently suspect criminal activities and compliance would require self-incrimination. The privilege does not extend to identification requests at Terry stops. A violation occurs the moment the compelled statements are used against a person.

Compulsory disclosure under the FIfth Amendment

The privilege generally does not apply to an individual's voluntarily prepared business papers or to records required by law to be kept, such as tax returns. Fisher v. United States, 425 U.S. 391 (1976). However, a person can refuse to comply with a requirement to register or pay a tax where the requirement is directed at a select group "inherently suspect of criminal activities." Marchetti v. United States, 390 U.S. 39, 52 (1968) (occupational tax on bookies); Leary v. United States, 395 U.S. 6 (1969) (registration and tax based on transfer of marijuana).

Testimonial Evidence under Fifth Amendment

The privilege protects only testimonial evidence. Nontestimonial physical evidence (such as a blood or urine sample, Breathalyzer test result, handwriting exemplar, voice sample, or other evidence of physical characteristics) is not protected.

Adminstrative search probable cause

The probable cause requirement for administrative searches is less stringent than that for a criminal investigation. Evidence of an existing statutory or regulatory violation or a reasonable plan supported by a valid public interest will justify the issuance of a warrant. Camara v. Mun. Court of San Francisco, 387 U.S. 523, 533 (1967).

Larceny another's property

The property must be in the possession of someone other than the defendant. The owner of property (i.e., a person who has title to it) can commit larceny when someone other than the owner (e.g., a lessee) is entitled to current possession of the property. Larceny may even be committed against a thief. Stolen property taken from a thief can constitute larceny unless the taker has a superior possessory interest in the property (e.g., an owner or a lessee of the property). A joint owner of property who takes possession of the property from a co?owner is not guilty of larceny because the taker has an equal right to possess the property.

Larceny Trespass

The property must be taken without the owner's consent. If the original taking was without consent, yet was not unlawful because there was no intent to steal at the time of the taking, then larceny may be committed at a later time if the intent to steal is later formed. Under the "continuing trespass" rule, the original trespass is deemed to be "continuing" in order for the criminal act to coincide with the criminal intent. The defendant's original taking must have been wrongful (e.g., a taking based on knowledge that the property belonged to another, such as a taking with the intent to borrow and return the property).

Larceny personal property

The property taken must be personal, not real, property. Electricity or gas supplied by a utility constitutes personal property. Intangible property will not suffice; however, documents that represent the rights to intangible property (e.g., stocks, bonds) are treated as personal property. Modern theft statutes usually criminalize obtaining services without paying for them (i.e., the theft of services). The taking of fixtures (i.e., items affixed to real property) or real-property items (e.g., trees, unharvested crops) is not larceny when the defendant's act of severance occurs immediately before the carrying away of the fixture or other real-property items. However, when the real-property items have previously been severed from the land by the owner, they become personal property (e.g., picked apples), and the carrying away of such items can be larceny.

Admission of contents of document by party

The proponent may prove the contents of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. In such a case, the proponent does not need to account for the original. Fed. R. Evid. 1007. If a party against whom a document is offered admits to the contents of the document in an oral statement made out of court (other than during a deposition), the best evidence rule applies. The proponent must account for the original before using the adverse party's oral statement to prove the contents of the document.

Inevitable discovery rule

The prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means.

State's duty to disclose

The prosecution has an affirmative duty to disclose any material evidence favorable to the defendant and relevant to the prosecution's case in chief that would negate guilt or diminish culpability or punishment. Brady v. Maryland, 373 U.S. 83 (1963). Failure to make such a disclosure violates the Due Process Clause and is grounds for reversal, regardless of whether the failure to disclose was intentional, if the defendant can show that (i) the evidence is favorable to the defendant (i.e., is exculpatory or impeaches) and (ii)the failure to disclose caused prejudice against the defendant (i.e., there is a reasonable probability of a different outcome had the evidence been disclosed earlier). Strickler v. Green, 527 U.S. 263, 281-282 (1999); United States v. Bagley, 473 U.S. 667, 675 (1985). This duty does not extend to disclosure of impeachment evidence prior to a plea bargain agreement, United States v. Ruiz, 536 U.S. 622 (2002), or to post-conviction proceedings.

No duty to disclose impeachment information from plea bargain

The prosecution is not required to disclose impeachment information or information related to an affirmative defense to a defendant when the defendant enters into a plea bargain agreement prior to trial. The failure to disclose such information does not render the defendant's plea bargain involuntary. United States v. Ruiz, 536 U.S. 622 (2002).

Immunity and Fifth Amendment

The prosecution may compel incriminating testimony (at trial or before a grand jury) if it grants immunity to the individual and the individual must testify. The testimony cannot be used against the individual, directly or indirectly, in a subsequent prosecution. Often called "blanket" or "total" immunity, "transactional immunity" fully protects a witness from future prosecution for crimes related to her testimony. "Use and derivative-use" immunity only precludes the prosecution from using the witness's own testimony, or any evidence derived from the testimony, against the witness. The Supreme Court has held that the grant of "use and derivative-use" immunity is all that is constitutionally required to compel the testimony of a witness. Kastigar v. United States, 406 U.S. 441, 452-453 (1972). Testimony encouraged by a promise of immunity, however, is considered coerced and involuntary. Testimony under a grant of immunity may not be used by another U.S. jurisdiction to prosecute the defendant. See United States v. Balsys, 524 U.S. 666 (1998); Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964). Thus, a state grant of immunity will preclude admission of the testimony in a federal proceeding.

Burden of proof for consent to search

The prosecution must prove that the permission was freely given; the defendant is not required to show that the permission was coerced.

Grand Jury and prosecutor

The prosecutor is the advisor to the grand jury. As such, the prosecutor's role is to advise the grand jury with respect to the law and assist the grand jury in its job of issuing subpoenas for witnesses and evidence. The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury. Thus, a grand jury indictment cannot be dismissed for the prosecutor's failure to present exculpatory evidence, unless the prosecutor violated a preexisting constitutional or legislative rule. The prosecutor is subject to the grand jury secrecy rules.

Prosecutorial comment

The prosecutor may not comment on the defendant's exercise of the privilege against self-incrimination at trial. It is per se reversible error.

Disclosure of Introducing Evidence of Defendant's Sexual Conduct

The prosecutor or plaintiff who intends to introduce such evidence must disclose it to the defendant at least 15 days before trial unless the court, for good cause, allows a later disclosure. Fed. R. Evid. 413(b), 414(b), 415(b).

Attachment of Jeopardy

The protection against double jeopardy is not triggered until jeopardy attaches. In a jury trial, jeopardy attaches when the jury is empaneled and sworn in. In a bench trial, jeopardy attaches when the first witness is sworn in.

Media attending trials

The public and the press both have the right to attend criminal trials, but this right is not absolute. It may be outweighed if the trial judge finds an overriding interest that cannot be accommodated by less restrictive means. The Supreme Court has not determined whether this right also applies to civil trials. However, the Supreme Court has held that the defendant's right to a public trial extended to voir dire, and the trial court must consider reasonable alternatives to closing the voir dire to the public in addressing the trial court's concerns. Presley v. Georgia, 558 U.S. 209 (2010).

Types of traders affected by failure to disclose

There are four types of traders who may be liable for failure to disclose information: (i) insiders, (ii) constructive insiders, (iii)tippees, and (iv) misappropriators.

Defenses Against Application of Foreign Law

There are generally three arguments against the application of foreign law, that the law to be applied is: i) Procedural, rather than substantive; ii) Against public policy; or iii) A penal law.

Civil liabilities for stock registration

The purchaser of a security from a corporation that has not complied with the registration requirements may sue the corporation to rescind the transaction. In addition, the purchaser can sue for compensatory damages caused by a material misrepresentation or omission in the registration statement. The purchaser need not have relied on the error or omission, but she cannot have purchased with knowledge of the error or omission. Any of the following individuals may be liable: i) The issuer; ii) Any other signer of the registration statement (generally senior executives of the issuer); iii) A director of the issuer at the time the statement is filed; iv) An expert whose opinion is used in the registration statement; or v) The underwriter of the issue. The issuer is strictly liable, but the other defendants may defend on the basis of the reasonableness of their actions. This is referred to as a "due diligence" defense.

Qualifications of Congress Members

The qualifications for members of Congress are set forth in Article I and cannot be altered by Congress or the states. United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (state-mandated term limits for federal representatives invalid); Powell v. McCormack, 395 U.S. 486 (1969) (House of Representatives could not refuse to seat a scandal-plagued member who satisfied constitutional criteria for service).

Interrogation at crime scene

The questioning of a person at the scene of a crime or pursuant to a field investigation does not constitute custody for Miranda purposes as long as the person questioned is not under restraint equivalent to that of formal arrest and has the right to leave the presence of the questioning officer.

Equal Protection rational basis applicability

The rational basis standard is used in all cases in which one of the higher standards (intermediate or strict scrutiny) does not apply. Thus, rational basis review applies to laws drawing distinctions based on age, wealth, weight, or most other classifications, as well as to any distinctions drawn for business or economic reasons. The Court generally gives extreme deference to the legislature's right to define its objectives. In order to determine the legislature's purpose, the Court will look at the statute and the preamble. If the legislative purpose is not clear from the statute, the Court may consider any conceivable purpose that may have motivated the legislature. U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980). Some classifications, although nominally subject to rational basis review, in practice receive heightened scrutiny. See e.g., Romer v. Evans, 517 U.S. 620 (1996) (sexual orientation); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (developmental disability). When the government has acted out of animus toward or fear of a particular group, that action—even if not involving a suspect or a quasi-suspect classification—will be searchingly reviewed and may be struck down even under a rational basis test. See e.g., United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013) (Defense of Marriage Act and same-sex marriage).

Due Process rational basis applicability

The rational basis standard is used in all cases to which strict scrutiny or intermediate scrutiny does not apply. Heller v. Doe, 509 U.S. 312 (1993). In practice, most legislation related to lifestyle, taxation, zoning, and punitive damages is reviewed under this standard. Although punitive damages do not violate due process, excessive damages may. The court considers whether the defendant had fair notice of the possible magnitude before it will bar a punitive-damages award. The government cannot presume facts about an individual that will deprive that individual of certain benefits or rights. By doing so, the government creates an arbitrary classification that may violate due process as well as equal protection.

Nonpublic forum - viewpoint-neutral

The regulation need not be content-neutral, but it must be viewpoint-neutral. In other words, the government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented. For example, while a restriction on all public speeches related to abortion on military bases would likely be upheld, a restriction only on pro-life speeches would not.

Larceny by Trick - false representation

The representation (whether oral, written, or by actions) must be false in fact and be of a material past or present fact. A prediction about a future event, a false promise, or an opinion, such as sales talk or puffing, is not sufficient.

False Pretenses false factual representation

The representation must be false and must be of a material past or present fact. A prediction about a future event, a false promise, or an opinion, such as sales talk or puffing, is not sufficient. The representation may be made orally, in writing, or by actions (e.g., resetting a car's odometer). Silence does not constitute a representation, even when the defendant is aware of the owner's misunderstanding, unless the defendant caused the misunderstandingor the defendant has a fiduciary obligation to the victim.

Conflict of Interest and Ineffective Assistance of counsel

The representation of defendants with conflicting interests may amount to ineffective assistance of counsel. In general, to overturn a conviction on the basis of a conflict of interest, a defendant must show that there was an actual conflict of interest and that such conflict adversely affected the attorney's performance.

Trust res

The requirement of identifiable trust property, or res, distinguishes a trust from a debt. A trust involves the duty of one party to deal with specific property for another, whereas a debt involves the obligation of one party to pay a sum of money, from any source, to another. If the recipient of the funds is entitled to use them as if they are his own and to commingle them with his own monies, then the obligation to pay the funds to another is a debt, not a trust.

Indirect tax - uniformity

The requirement that indirect federal taxes (i.e., duties, sales taxes, and import & excise taxes) must be uniform throughout the United States has been interpreted to mean geographical uniformity only; the product or activity at issue must be identically taxed in every state in which it is found. Differences in state law do not destroy this uniformity. Fernandez v. Wiener, 326 U.S. 340 (1945) (federal estate tax on "community property" valid despite variation in state laws regarding marital property).

Level of shareholder approval

The requisite level of shareholder approval is a majority, but approval by a plurality may be permissible, especially if the issue is the election of directors. RMBCA §§7.25(c), 7.28(a). A plurality vote requirement for directors means that the individuals with the largest number of votes are elected as directors up to the maximum number of directors to be chosen at the election. Usually, the level of shareholder approval is based on the number of votes cast. For some issues, such as fundamental changes, the level of shareholder approval is based on the number of votes eligible to be cast.

Nonpublic forum - reasonable

The restriction on speech-related activities in nonpublic forums must only be rationally related to a legitimate governmental interest. For example, a city may sell commercial advertising space inside city buses but refuse to sell such space for political advertising in order to avoid the appearance of favoritism and imposition on a captive audience. Lehman v. City of Shaker Heights, 418 U.S. 298 (1974).

Due Process retroactive legislation

The retroactive application of a statute does not in and of itself violate substantive due process. Consequently, a law that is applied retroactively must merely meet the rational basis test. United States v. Carlton, 512 U.S. 26 (1994) (retroactive application of estate tax law that resulted in denial of a deduction upheld). Similar treatment applies to a statutory change that is remedial in nature (i.e., affects a remedy but does not create or abolish a right). Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945) (lengthening of statute of limitations that permitted an otherwise time-barred lawsuit to be maintained upheld). Note, however, that the extension of a criminal statute of limitations may violate the prohibition on an ex post facto law (see §XVI.B. Ex Post Facto Laws, infra).

Criminal Defense - Right to arrest

The right of a police officer to arrest a suspect is often specified by statute. A police officer can lawfully arrest a suspect, with or without a warrant, if the suspect has committed a crime in the officer's presence or if the officer has probable cause to believe that the defendant committed a felony offense outside of his presence. A civilian acting without police direction in making an arrest (e.g., a "citizen's arrest") who makes a mistake, even a reasonable mistake, as to the commission of the crime is not entitled to rely on this defense.

Witness unavailable and right of confrontation

The right of confrontation is satisfied if the defense counsel had a right to cross-examine the witness at an earlier hearing, provided that the prosecution failed in a good-faith effort to produce the witness at the trial and the declarant is now unavailable. However, if the witness is unavailable because of the defendant's conduct, then testimonial hearsay is admissible. Giles v. California, 554 U.S. 353, 373 (2008).

Fourth Amendment - Exclusionary RUle

The right to be free from unreasonable searches and seizures must be distinguished from the remedy. The primary remedy is the "exclusionary rule," which prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. This remedy is judicially created, not constitutionally mandated. The remedy provided by the exclusionary rule generally applies to criminal trials; it does not apply in other court proceedings, including federal habeas corpus review of state convictions, grand jury proceedings, preliminary hearings, bail hearings, sentencing hearings, and proceedings to revoke parole. Evidence will also not be excluded at trial when introduced as impeachment evidence against the defendant. Finally, the exclusionary rule is not applicable to civil proceedings. See § I.C.6., Exclusionary Rule, infra, for an expanded discussion.

Cross-examination of witnesses

The right to confrontation means more than being allowed to confront the witness physically. The principal purpose of confrontation is to secure for the defendant the opportunity of cross-examination of the prosecution's witnesses.

Standard of Competent Counsel

The right to counsel encompasses the right to be assisted by a reasonably competent attorney and is presumed. The right to effective counsel extends to the defendant's first appeal. To reverse a conviction on the ground of ineffective counsel, the claimant has the burden to show that: i) Counsel's representation fell below an objective standard of reasonableness; and ii) Counsel's deficient performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair outcome in the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's mere inexperience, strategy, choice of appellate issues, or even failure to produce mitigating evidence have all been found insufficient to rise to the level of ineffective counsel. Bell v. Cone, 535 U.S. 685 (2002); Jones v. Barnes, 463 U.S. 745 (1988); United States v. Cronic, 466 U.S. 648 (1984). The failure of defense counsel to raise a federal constitutional issue that was law at the time of the trial, but was later overruled, does not constitute ineffective assistance of counsel. Lockhart v. Fretwell, 506 U.S. 364 (1993).

Noncritical stages under Sixth Amendment

The right to counsel generally does not apply to the following events: i) A witness viewing photos of the alleged defendant; ii) Pre-charge (investigative) lineups; iii) Taking of fingerprints, handwriting exemplars, voice exemplars, or blood samples; iv) Hearings to determine probable cause to detain the defendant (Gerstein hearing); v) Discretionary appeals; and vi) Post-conviction proceedings, such as parole or probation hearings (including habeas corpus).

Invocation of right to counsel

The right to counsel under the Fifth Amendment is not the same as the constitutional requirement of the right to counsel under the Sixth Amendment. The right to counsel under the Fifth Amendment is not automatic. To invoke the right to counsel under the Fifth Amendment, the defendant must make a specific, unambiguous statement asserting his desire to have counsel present. If a suspect makes an ambiguous statement regarding the right to counsel, the police are not required to end the interrogation or to ask questions or clarify whether the suspect wants to invoke the right. Davis v. United States, 512 U.S. 452 (1994). However, once that right to counsel is invoked, all interrogation must stop until counsel is present. Edwards v. Arizona, 451 U.S. 477, 484 (1981). If the defendant voluntarily initiates communication with the police after invoking his right to counsel, a statement made by the defendant, such as a statement that the defendant spontaneously blurts out, can be admissible because it is not made in response to interrogation. In addition, police may re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel if there has been a 14-day release from custody. In such circumstances, the police can ask the defendant if she wants to talk and if she says yes, the officers must give fresh Miranda warnings and get a valid waiver before beginning questioning. Maryland v. Shatzer, 559 U.S. 98 (2010).

Effective Assistance of Counsel and formal plea offer

The right to effective assistance of counsel extends to the plea bargaining stage. Defense counsel must accurately communicate to the defendant any formal offer from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant. To show prejudice once a plea offer has lapsed or has been rejected because defense counsel failed to accurately communicate the offer, a defendant must demonstrate a reasonable probability that she would have accepted the plea offer had it been accurately communicated by defense counsel. A defendant must also demonstrate a reasonable probability that the prosecutor and trial court would have accepted the plea if they had the discretion to reject it under state law. Missouri v. Frye, 566 U.S. ____, 132 S. Ct. 1399 (2012). Ineffective assistance of counsel at the plea bargaining stage may constitute reversible error even if the subsequent trial and conviction are fair. Lafler v. Cooper, 566 U.S. ____, 132 S. Ct. 1376 (2012).

Due Process - Marriage

The right to marry is fundamental. Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015) (same-sex couples); Loving v. Virginia, 388 U.S. 1 (1967) (interracial couples); Turner v. Safley, 482 U. S. 78 (1987) (prisoners); Zablocki v. Redhail, 434 U.S. 374 (1978) (fathers delinquent in child-support payments).

Scope of search incident to arrest

The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. The right also extends to containers "immediately associated" with the person (such as a shoulder bag or purse). The search incident to lawful arrest exception does not extend to an arrestee's cell phone or laptop. Absent exigent circumstances, police must obtain a warrant before searching digital information of a person arrested. Riley v. California, 573 U.S. ___, 134 S. Ct. 999 (2014).

Corporate asset acquisition

The sale or other transfer of a corporation's assets does not require approval by the shareholders or board of a transferor corporation. However, asset transfers that resemble a merger may require approval by both the board of directors and the shareholders of the transferor corporation.

Obscenity and prohibited activities

The sale, distribution, and exhibition of obscene material may be prohibited. Stanley v. Georgia, 394 U.S. 557 (1969). However, the right to privacy generally precludes criminalization of possession of obscenity in one's own home. Stanley v. Georgia, supra.

Authority as Chief Executive

The scope of the President's power to issue executive orders and to govern domestic affairs is extensive but not clearly delineated. The best-known exposition holds that the President's authority varies with the degree of congressional authorization of the action. Thus, when the President acts: i) With the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid; ii) When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government; and iii) When Congress has spoken to the contrary, presidential authority is "at its lowest ebb," and the action is likely invalid. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (military commission had no jurisdiction to proceed because the executive order authorizing the commission exceeded congressional limitations placed on the President to convene commissions).

Trustee power to modify

The settlor may include the power to modify in order to give the trustee the ability to change provisions of the trust to reflect the settlor's intent.

Private Express Trust - Intent

The settlor must intend to make a gift in trust. The use of common trust terms (such as "in trust" or "trustee") will create a presumption of intent to create a trust, but these words are not required. The settlor's intent may be manifested orally, in writing, or by conduct. Intent is only required to be expressed in writing when the Statute of Wills (i.e., the jurisdiction's requirements for the execution of a will) or the Statute of Frauds (UCC § 2-207) applies. To determine a settlor's intent, both in creating and administering a trust, the courts consider: i) The specific terms and overall tenor of the words used; ii) The definiteness or indefiniteness of the property involved; iii) The ease or difficulty of ascertaining possible trust purposes and terms, and the specificity or vagueness of the possible beneficiaries and their interests; iv) The interests or motives and the nature and degree of concerns that may be reasonably supposed to have influenced the transferor; v) The financial situation, dependencies, and expectations of the parties; vi) The transferor's prior conduct, statements, and relationships with respect to possible trust beneficiaries; vii) The personal and any fiduciary relationships between the transferor and the transferee; viii) Other dispositions the transferor is making or has made of his wealth; and ix) Whether the result of construing the disposition as involving a trust or not would be such as a person in the situation of the transferor would be likely to desire. Restatement (Third) of Trusts § 13. The manifestation of intent must occur either prior to or simultaneously with the transfer of property. If the transfer does not take place immediately, then the intent should be manifested anew at the time of transfer. A promise to create a trust in the future is unenforceable unless the promise is supported by consideration sufficient for the formation of a contract.

Profit share inference exceptions

The sharing of profits from a business does not create a rebuttable presumption that the arrangement is a partnership and the recipients are partners in six statutorily enumerated circumstances: i) Debt payments, including installment payments; ii) Interest or other loan charges, even though the payment varies with the profits of the business; iii) Rent; iv) Wages or other compensation paid to an employee or independent contractor; v) Goodwill payments stemming from the sale of a business, including installment payments; and vi) Annuities or other retirement or health benefits paid to a beneficiary, representative, or designee of a deceased or retired partner. RUPA 202(c)(3).

Equal Protection and state and local districts

The size of electoral districts may vary much more in the case of state and local elections, as long as the variance is not unjustifiably large. A variation of less than 10% is rebuttably presumed to be a minor deviation that does not constitute a prima facie case for discrimination. Cox v. Larios, 300 F. Supp. 2d 1320 (N.D. Ga.), aff'd; 542 U.S. 947 (2004); Brown v. Thompson, 462 U.S. 835 (1983). When the maximum variation is 10% or greater, the state must show that the deviation from equality between the districts is reasonable and designed to promote a legitimate state interest. Mahan v. Howell, 410 U.S. 315 (1973) (maximum difference of 16% in size of population between state legislative districts permitted when the state respected the boundaries of political subdivisions).

Corporate officer duties

The specific duties of an officer are defined by the corporate bylaws or set by the board of directors. RMBCA §8.41. The duties of care and loyalty that are imposed on the directors of a corporation are also owed by the officers of a corporation. Moreover, all employees, as agents of the corporation, owe the corporation these duties of care and loyalty. RMBCA §8.42.

Spending Power

The spending power has been interpreted very broadly. Congress has the power to spend for the "general welfare"—i.e., any public purpose—not just to pursue its other enumerated powers. U.S. v. Butler, 297 U.S. 1 (1936). For example, Congress can provide for the public funding of presidential nominating conventions as well as election campaigns. Buckley v. Valeo, 424 U.S. 1 (1976). Although there are areas in which Congress cannot directly regulate, it can use its spending power to accomplish such regulation indirectly by conditioning federal funding. See South Dakota v. Dole, 483 U.S. 203 (1987) (statute upheld withholding federal highway funds from states unless they barred the sale of alcoholic beverages to individuals under the age of 21). Congress cannot, however, impose unconstitutional conditions that turn pressure into compulsion, such as requiring distribution of the Ten Commandments to patients as a condition of Medicaid funding. See id., 210-211; Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937); Nat'l Fed'n of Indep. Bus. v. Sebelius (The Patient Protection and Affordable Care Cases), 567 U.S. 519 (2012). Moreover, to be enforceable, conditions must be set out unambiguously. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) (parents who prevailed against local school board for violation of Individuals with Disabilities Education Act could not recover expert fees from local school board under a provision providing for recovery of costs).

Standard of review for substantive due process

The standard of review in substantive due process cases is generally twofold: a governmental action that infringes upon a fundamental right is generally subject to strict scrutiny. If the interest infringed upon is not fundamental, then there need be only a rational basis for the regulation.

Invocation of Fifth Should not impose a burden

The state cannot penalize a defendant for invoking his right against self-incrimination by not testifying or cooperating with authorities. The prosecution cannot comment to the jury on the defendant's refusal to speak in accordance with his Miranda rights. A violation in this regard by the state triggers the harmless-error test. However, if during trial the defendant claims that he was not allowed to explain his story, then the prosecution may comment on the defendant's failure to take the stand.

Affirmative defenses and due process

The state is not forbidden by the Due Process Clause from placing the burden of proving an affirmative defense—such as insanity, self-defense, entrapment, or duress—on the defendant. Dixon v. United States, 548 U.S. 1, 13 (2006).

Forfeiture and administrative corporate dissolution

The state may force a corporation to forfeit its right to exist or administratively dissolve the corporation if the corporation has (i) failed to pay fees or taxes, (ii) failed to file required reports or notices, or (iii) abused its powers. RMBCA §§ 14.20-14.21, 14.30(a). Continuing to operate as a corporation after forfeiture can result in the personal liability of the operators.

Due process - government benefits

The state must give notice and hold a hearing prior to terminating welfare benefits. In cases of terminating disability benefits, the state must give prior notice, but only a post-termination evidentiary hearing is required. Goldberg v. Kelly, 397 U.S. 254 (1970), Mathews v. Eldridge, supra.

Medical statement made to a person other than a physician

The statement need not be made to a physician to fall under this exception. Statements to other medical personnel, including hospital attendants and ambulance drivers, or even to family members, may be included. Fed. R. Evid. 803(4), Notes of Advisory Committee.

Federal Immunity from State Regulation and Taxation

The states have no power to regulate the federal government—for example, by imposing state wage-and-hour laws on local federal offices—unless Congress permits the state regulation or unless the state regulation is not inconsistent with existing federal policy. The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states. McCulloch v. Maryland, 17 U.S. 316 (1819). States may, however, impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government (e.g., state income taxes on federal employees).

Due process - strict in theory, fatal in fact

The strict scrutiny standard is very difficult to meet. The great majority of laws reviewed under strict scrutiny are struck down.

Equal Protection Strict Scrutiny applicability

The strict scrutiny test is applied if a fundamental right or a suspect classification is involved. The suspect classifications are race, ethnicity, national origin, and, if the classification is by state law, alienage.

Surviving Spouse family allowance

The surviving spouse has a right to a family allowance during probate, the amount of which varies by jurisdiction. Some jurisdictions permit minor children also to receive a family allowance. Depending on the jurisdiction, the family allowance is either a set amount or one based on the marital standard of living.

Surviving Spouse - Spousal Support

The surviving spouse is entitled to the following means of support: Social Security, pension plans, homestead exemption, personal property, and family allowance. Only a spouse can receive a worker's survivor benefits from Social Security. Pension plans governed by the ERISA are required to give spouses survivorship rights. Unlike Social Security, a surviving spouse can waive her rights in the spouse's pension plan, but such waivers are subject to strict requirements.

Larceny Taking

The taking (also known as "caption") requirement is satisfied by any trespassory removal of the property from the owner's possession into another's control. The destruction of property while it is in the owner's possession (e.g., breaking an object held by the owner) is not a taking. A taking occurs if the defendant uses an agent, even one who is unaware of the defendant's criminal intent, to remove the property from the owner's possession.

Robbery by force or intimidation

The taking of the property must be accomplished by force or intimidation. The force used by the defendant must be more than the amount necessary to effectuate taking and carrying away the property. When a pickpocket takes the victim's property without the victim's knowledge, the taking does not constitute robbery unless the victim notices the taking and resists. The threat must be of immediate serious physical injury to the victim, a close family member, or other person present. A threat to damage or destroy property, other than the victim's home, is probably not sufficient.

Complete Auto test - nondiscrimination

The tax may not provide a direct commercial advantage to local businesses over their interstate competitors (unless Congress specifically authorizes such a tax). A tax that is neutral on its face still may be unconstitutional if its effect is to favor local commerce. West Lynn Creamery Inc. v. Healy, 512 U.S. 186 (1994) (tax affecting all milk dealers, the revenue from which went to a fund used to subsidize in-state dairy farmers, violated the Commerce Clause). In addition, the denial of tax exemption to a state entity unless the entity operates primarily for the benefit of state residents may be unconstitutional. Camps Newfound/Owatonna v. Town of Harrison,520 U.S. 564 (1997).

Complete Auto Test - Fair apportionment

The tax must be fairly apportioned according to a rational formula (e.g., taxing only the state's portion of the company's business), such that interstate commerce does not pay total taxes greater than local commerce by virtue of having to pay tax in more than one state. The burden is on the taxpaying business to prove unfair apportionment.

Complete Auto Test - fair relationship to services provided

The tax must be fairly related to the services provided by the taxing state. Evansville-Vanderburg Airport Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707 (1972) (tax on airline passengers was related to benefits the passengers received from the state airport facilities).

Inchoate Crimes

The term "inchoate" literally means "unripened." With an inchoate offense, the intended crime need not be committed for a defendant to be guilty. The inchoate offenses are solicitation, conspiracy, and attempt. Inchoate offenses are specific-intent crimes.

Closely held and close corporations

The terms "closely held corporation" and "close corporation" are frequently used interchangeably to refer to a corporation with only a few shareholders and a more relaxed style of governance. Shareholders often serve as both directors and officers of the corporation. Stock of such a corporation is not publicly traded, and many states allow shareholders to do away with many of the corporate formalities.

Waiver by Surviving Spouse Requirements

The terms of the waiver must be objectively fair and reasonable to both parties. The waiver must be voluntary and in writing and must be signed by the surviving spouse. It can be revoked or altered only by a subsequent writing signed by both parties, unless the waiver specifies other means of revocation. The surviving spouse must be represented by independent legal counsel at the time the waiver is signed. The surviving spouse must have had adequate knowledge of the property and financial obligations of the decedent at the time of the signing of the waiver.

Public forums and injunctions

The test for the constitutionality of injunctions in public forums depends on whether the injunction is content-neutral or content-based. If an injunction is content-neutral, then the test is whether it burdens no more speech than is necessary to achieve an important governmental interest. On the other hand, if the injunction is content-based, it must be necessary for the government to achieve a compelling governmental interest.

Form of Will Signature

The testator's complete formal name is not required, as long as the signature indicates his desire to sign (e.g., even an "X" is acceptable). If the testator signs by a mark, some jurisdictions may require that the mark be made in the presence of a witness. Additionally, in most jurisdictions and under the UPC, the will may be signed by another provided that the "conscious presence" test is satisfied (i.e., that the other person signs the testator's name, in the presence and at the express direction of the testator).

Trust for a Minor

The third alternative is to establish a trust for a minor, which is the most flexible of the property arrangements. A testator can tailor a trust specifically to the family circumstances and to his particular desires. Whereas under a guardianship or conservatorship the child must receive the property at age 18 or 21, a trust can postpone possession until a time when the donor thinks the child will be competent to manage the property.

Traditional approach to allocating trust principal and income

The traditional approach assumed that any money generated by trust property was income and that any money generated in connection with a conveyance of trust property was principal. The traditional approach serves as the starting point for the modern approach.

Trust termination - revocation by will

The traditional rule required a trust to expressly provide for its revocability by will. The UTC authorizes trust revocation by will unless the trust expressly provides for another method of revocation.

Partnership transfer effect on partnership

The transfer of a partner's partnership interest to a third party does not trigger the dissolution of the partnership. RUPA 503(a)(2). In addition, the partnership is not required to give effect to the transfer until the partnership has notice of it. RUPA 503(e).

Partnership transfer effect on transferor

The transfer of a partner's partnership interest to a third party does not trigger the partner's dissociation from the partnership. Instead, the transferor partner retains all rights and duties of a partner in the partnership apart from an interest in the distributions transferred. RUPA 503(a)(2), (d).

Partnership transferee rights

The transferee has the right to receive distributions from the partnership to which the transferor partner would otherwise have been entitled, including both distributions made by the partnership as an ongoing concern and those made upon dissolution of the partnership and the winding up of its business. In addition, the transferee may seek a judicial order for dissolution of the partnership. In the event of dissolution, the transferee is entitled to an accounting, but only for the period beginning from the date of the last accounting agreed to by all of the partners. RUPA 503(b), (d).

Authorization of LLP

The transformation of a partnership into an LLP must be approved by the vote necessary to amend the partnership agreement. If the partnership agreement is silent on this voting requirement, the approval of the transformation requires the approval of all partners. RUPA 1001(b).

Trustee

The trustee holds the legal interest or title to the trust property.

Duty to diversify assets

The trustee must adequately diversify the trust investments to spread the risk of loss. Under the UPIA, investing in one mutual fund may be sufficient if the fund is sufficiently diversified. A presumed greater expertise creates a higher standard for professional or corporate trustees than for individual trustees. A trustee is justified in not diversifying if the administrative costs of doing so (including tax consequences or changes in controlling interest of a family-run business) would outweigh the benefits. With respect to a revocable trust, a trustee's duties are owed exclusively to the settlor. When a trust is irrevocable, acting in accordance with a settlor's directives is inadequate to absolve a trustee from liability because the trustee's obligations are owed to trust beneficiaries. However, when there are no income beneficiaries other than the settlor, the settlor may be treated as the effective owner. See UPIA § 3.

Factors to consider for trust allocation

The trustee must balance the following factors in determining how best to exercise such allocation: i) The intent of the settlor and the language of the trust instrument; ii) The nature, likely duration, and purpose of the trust; iii) The identities and circumstances of the beneficiaries; iv) The relative needs for regularity of income, preservation and appreciation of capital, and liquidity; v) The net amount allocated to income under other sections of the act and the increase and decrease in the value of principal assets; vi) The anticipated effect of economic conditions on income and principal; and vii) The anticipated tax consequences of the adjustment.

Trustee duty to secure possession

The trustee must secure possession of the property within a reasonable period of time. In the case of a testamentary trust, the trustee must monitor the executor's actions to ensure that the trust receives all of that to which it is entitled.

Trustee duty to segregate

The trustee must separate his personal property (such as money and stocks) from trust assets to ensure that they cannot be switched if one outperforms the other. An exception to this duty to segregate applies when a trustee invests in bearer bonds. Under common law, the trustee was strictly liable for damages to the trust property even if they were not caused by a breach of the duty to segregate. The modern trend holds the trustee liable only when the breach causes the damage to the trust property.

Power of Attorney liability

The typical durable healthcare power of attorney statute shields the agent from civil liability for healthcare decisions made in good faith. Agents act within the scope of the statute when they act pursuant to a properly executed durable healthcare power of attorney. In general, an agent is held responsible only for intentional misconduct, not for unknowingly doing something wrong. This type of protection is included in most power of attorney documents to help encourage people and organizations to accept the responsibility of being an agent.

Sentence enhancement use and double jeopardy

The use of a defendant's prior conviction to enhance the sentence imposed on a defendant for a current conviction does not violate the Double Jeopardy Clause. Witte v. United States, 515 U.S. 389, 400 (1995).

Criminal Defense - Parental Authority

The use of reasonable force in the exercise of parental authority (i.e., discipline) by a parent or by a person in charge of a child (e.g., a teacher) is justified if exercised for the benefit of the minor child.

Larceny by Trick - reliance

The victim must rely upon the false representation, and that reliance must cause the victim to give possession to the defendant. This standard is subjective, not objective.

False Pretenses reliance by the victim

The victim must rely upon the false representation, and that reliance must cause the victim to pass title to the defendant. This standard is subjective, not objective.

Kidnapping - movement

The victim need only be moved a short distance (e.g., forced from the driver's seat into the trunk of a car). If the kidnapping occurs incident to another crime (e.g., robbery), then the movement must be more than is necessary for the commission of that crime in order for a defendant to be liable for both kidnapping and the separate offense.

Kidnapping - confinement

The victim's freedom of movement must be significantly restricted. It is not enough that the victim is prevented from taking a path or entering an area; the victim must be prevented from leaving an area or compelled to go to a place the victim does not want to go.

Post-dissolution conduct effect on a third party

The waiver does not adversely affect the rights of a third party who dealt with the partnership before the party knew or was notified of the waiver. RUPA802(b)(2), inc. cmt. 3.

The Miranda Warning

The warnings, which must be given before interrogation begins, need not be a verbatim repetition of the language used in the Miranda decision. Law-enforcement officials must inform defendants: i) Of their right to remain silent; ii) That any statement uttered may be used in court; iii) Of their right to consult an attorney and to have the attorney present during an interrogation; and iv) That an attorney will be appointed to represent indigent defendants.

Will Witnesses Presence

The witnesses need not read the will, but they must be aware that the instrument is a will. In most jurisdictions, the testator must sign or acknowledge the will in the presence of the witnesses, and the witnesses must sign in the presence of the testator. The UPC, however, does not require the witnesses to sign the will in either the presence of the testator or the presence of the other witnesses. Rather, each witness must sign only within a reasonable time of the original signature by the testator, at his direction, or while observing the testator's acknowledgment of the will. Unif. Probate Code § 2-502(a)(3). There are two other approaches followed by some jurisdictions: the line-of-sight test and the conscious-presence test.

Forgery false writing

The writing itself must be false, instead of merely including false information in an otherwise genuine document. (Note: Signing another person's name on a check or other commercial paper makes the check itself false.) When there is an alteration, the alteration must be material.

Hearsay Exceptions - Declarant Unavailable

There are five exceptions to the hearsay rule that apply only if the declarant is unavailable as a witness: former testimony, dying declaration, statement against interest, statement of personal or family history, and statement offered against a party that wrongfully caused the declarant's unavailability.

Director self-dealing safe harbors

There are three safe harbors by which a conflict-of-interest transaction may enjoy protection: i) Disclosure of all material facts to, and approval by a majority of, the board of directors without a conflicting interest; ii) Disclosure of all material facts to, and approval by a majority of, the votes entitled to be cast by the shareholders without a conflicting interest; and iii) Fairness of the transaction to the corporation at the time of commencement. RMBCA §8.61.

Crimes Against Nature

There are two crimes under this category: sodomy and bestiality. Both are considered common-law felonies. However, in light of Lawrence v. Texas, 539 U.S. 558 (2003), it is most improbable that a defendant could be successfully prosecuted for the crime of sodomy. Because the majority in Lawrence held that intimate consensual sexual conduct was part of the liberty protected by the Fourteenth Amendment, Lawrence effectually invalidated similar laws that purport to criminalize sodomy. Bestiality (sexual intercourse with an animal by a human) continues to survive.

Types of eyewitness identification

There are two types of eyewitness identification procedures: corporeal and non-corporeal. Corporeal identifications are "in-person," as in lineups or show-ups. Non-corporeal identifications are not in-person and involve police officers using photo arrays for a witness to identify the perpetrator of the crime.

Residual Exception to Hearsay

There is a "catch-all" exception for a statement that is not otherwise covered by the Federal Rules. A hearsay statement may be admissible under this exception if: i) The statement has equivalent circumstantial guarantees of trustworthiness; ii) It is offered as evidence of a material fact; iii) It is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain; and iv) Admission will best serve the purposes of the Federal Rules and the interests of justice. The proponent must give an adverse party reasonable notice before the trial or hearing of the intent to offer the statement as well as its particulars, including the declarant's name and address. Fed. R. Evid. 807.

Maximum sentence to exceed six months

There is a constitutional right to a jury trial for non-petty offenses—those that carry an authorized sentence of more than six months of imprisonment, regardless of the actual penalty imposed. Baldwin v. New York, 399 U.S. 66 (1970). The right to a jury trial attaches for crimes punishable by six months of imprisonment or less only if additional statutory or regulatory penalties make the offense a "non-petty offense." United States v. Nachtigal, 507 U.S. 1 (1993) (a misdemeanor for which the maximum punishment was six months in prison and a $5,000 fine or probation not to exceed five years was not a serious offense). There is no right to trial by jury for multiple petty offenses (those that carry a combined total maximum term exceeding six months); the prison terms imposed for such convictions are not aggregated.

Due process - obscene material

There is a fundamental right to possess obscene material in the privacy of one's home, Stanley v. Georgia, 394 U.S. 557 (1969), with the exception of child pornography, Osborne v. Ohio, 495 U.S. 103 (1990). The state, however, may severely restrict the sale, purchase, receipt, transport, and distribution of obscene material. Paris Adult Theater v. Slaton, 413 U.S. 49 (1973).

Due Process - Interstate travel

There is a fundamental right to travel from state to state. Shapiro v. Thompson, 394 U.S. 618 (1969). This includes the right to enter one state and leave another, to be treated as a welcome visitor, and, for those who wish to become permanent residents, the right to be treated equally to native-born citizens with respect to state benefits. Saenz v. Roe, 526 U.S. 489 (1999) (state statute denying full welfare benefits to people who had not resided in the state for one year struck down; state's interests in discouraging fraud and establishing an objective residency test were not compelling). Reasonable residency restrictions may be imposed on the receipt of government benefits (i.e., in-state tuition); however, once a person qualifies as a resident, she must be treated equally. Zobel v. Williams, 457 U.S. 55 (1982) (division of state royalties from minerals and oil based on length of state residency unconstitutional).

Due Process and public employment

There is a legitimate property interest in continued public employment only if there is an employment contract or a clear understanding that the employee may be fired only for cause. Arnett v. Kennedy, 416 U.S. 134 (1974). An "at will" governmental employee has no right to continued employment. Bishop v. Wood, 426 U.S. 341 (1976). If, however, the government gives the "at will" public employee assurances of continual employment or dismissal for only specified reasons, then there must be a fair procedure to protect the employee's interests if the government seeks to discharge the employee from his position. Such entitlement to procedural due process can also result from statutory law, formal contract terms, or the actions of a supervisory person with authority to establish terms of employment. Note, though, that even those employees who lack any entitlement to continued employment cannot be discharged for reasons that in and of themselves violate the Constitution. Thus, an "at-will" governmental employee cannot be fired for having engaged in speech protected by the First Amendment. Board of Regents v. Roth, 408 U.S. 564 (1972). Similarly, discharge of an "at-will" governmental employee because of the employee's political views or affiliations would violate the employee's right to freedom of expression and association, unless it can be demonstrated that effective performance of the employee's job requires certain political views or affiliations. Branti v. Finkel, 445 U.S. 507 (1980). To be entitled to a hearing, however, the employee must make a prima facie claim that she is being discharged for reasons that violate specific constitutional guarantees. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). A dismissal will be upheld if the government can prove that the employee would have been discharged in any event for reasons unrelated to any constitutionally protected activities.

Bail presumptions

There is a presumption in favor of pre-trial release. A detention hearing must be held at the initial appearance for there to be a release. However, there is a presumption against bail post-conviction, pending appeal. The Federal Rules of Evidence do not apply at detention hearings.

Due Process and public education

There is a property right to a public education. Goss v. Lopez, 419 U.S. 565 (1975). Although such a right is not specifically recognized by the Constitution, all states recognize the right to a public education. See, e.g., Serrano v. Priest, 487 P.2d 1241 (Cal. 1971); Tex. Const. art. VII. § 1. However, the Supreme Court has never determined whether a student at a public institution of higher learning has a property (or liberty) interest in her education there. Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978) (Supreme Court assumed without deciding that a medical student had a liberty or property interest; federal appellate court had found that the student had a liberty interest); See Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985) (Supreme Court assumed without deciding that a medical student had a liberty or property interest; federal appellate court had found that the student had a property interest).

Recognition of Child Custody Judgment

There is a reciprocal statute in all 50 states that governs child custody: the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, a court can make initial custody decisions if it is in the child's home state, and all other states must give full faith and credit to such decisions. Other states cannot modify these custody decrees unless the original court has no significant connection to the child or parents anymore (i.e., neither the child nor the parents reside in that state anymore).

Establishment Clause challenge

There is an exception for a taxpayer suit challenging a specific legislative appropriation made under the taxing and spending powers for violation of the Establishment Clause. Flast v. Cohen, 392 U.S. 83 (1968) (congressional grant to religious schools). This exception does not apply to the transfer of property to a religious organization by Congress under the Property Power, Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982), nor to expenditures made by the President to religious organizations from monies appropriated by Congress to the President's general discretionary fund, Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007), nor to a tax credit for contributions to student tuition organizations that provide scholarships to students attending private schools, including religious schools. Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011).

Sexual Orientation classifications

There is currently a division among the federal courts as to the standard of scrutiny that is applicable to discrimination on the basis of sexual orientation. The Supreme Court has struck down bans on same-sex marriage as violations of a fundamental right on both Due Process and Equal Protection grounds, but it has not resolved the issue of whether discrimination based on sexual orientation is subject to heightened scrutiny. The government, however, cannot impose a burden upon or deny a benefit to a group of persons solely based on animosity toward the class that it affects. Romer v. Evans, 517 U.S. 620 (1996). Among the rights, benefits, and responsibilities of marriage to which same-sex partners must have access are birth and death certificates, which give married partners a form of legal recognition that is not available to unmarried partners. Pavan v. Smith, 582 U.S. ___, 137 S. Ct. 2075 (2017), citing Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2016).

Criminal Defense - Retreat

There is never an obligation to retreat before employing nondeadly force. Under the majority view, retreat is not required even when deadly force is used in self-defense. Under the minority view (states that follow the so-called "retreat doctrine"), retreat is required if it can be safely accomplished. Even under the minority view, however, retreat is never required when the person employing deadly force is in his own home (i.e., the "castle doctrine").

Due Process - abortion and government funding

There is no constitutional right to have the government provide indigent women with funding for an abortion or for medical care related to an abortion, even if the government does provide indigent funding for medical care at childbirth. Maher v. Roe, 432 U.S. 464 (1977). Furthermore, a state may prohibit all use of public facilities and public employees in performing abortions. Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

Search and physical characteristics

There is no expectation of privacy in one's physical characteristics; therefore, a demand for a handwriting or voice sample is not a search. United States v. Mara, 410 U.S. 19 (1973) (handwriting exemplar); United States v. Dionisio, 410 U.S. 1 (1973) (voice exemplar). Furthermore, DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under theFourth Amendment. Maryland v. King, 569 U.S. ___, 133 S. Ct. 1958 (2013).

Right to bail

There is no explicit constitutional right to bail. However, any denial of bail must comply with the Due Process Clause. Therefore, the setting of excessive bail or the refusal to set bail is immediately appealable. Furthermore, bail set higher than an amount reasonably calculated to ensure the defendant's presence at trial is "excessive" under the Eighth Amendment.

Professional Journalist privilege

There is no federal privilege protecting a journalist's source of information, but some states have enacted statutes extending some protection to journalists.

Due process - public office and ballot access

There is no fundamental right to hold office through election or appointment, but all persons do have a constitutional right to be considered for office without the burden of invidious discrimination. Turner v. Fouche, 396 U.S. 346 (1970).

Due Process - intimate sexual behavior

There is no legitimate state interest in making it a crime for fully consenting adults to engage in private sexual conduct—including homosexual conduct—that is not commercial in nature. Lawrence v. Texas, 539 U.S. 558 (2003).

Location of interrogation irrelevant

There is no requirement that the interrogation take place in a police station to be deemed custodial, only that a governmental agent (e.g., police officer), not a civilian, does the interrogating.

Miranda and grand jury

There is no requirement to give Miranda warnings to a witness testifying for the grand jury. The witness may, however, consult with an attorney outside the grand jury room.

Non-corporeal identification and Sixth Amendment

There is no right to counsel during an identification through a photo array, regardless of when the photo array is conducted.

Public forums and residential areas

There is no right to focus picketing on a particular single residence. However, a person may solicit charitable funds in a residential area. Door-to-door solicitation does not require a permit, as long as the solicitation is for noncommercial or nonfundraising purposes. Cantwell v. Conn., 310 U.S. 296, 306 (1940).

Larceny sufficient intent

There is sufficient intent if the defendant intends to create a substantial risk of loss of the property or if the defendant intends to sell the goods back to the owner.

Complete Auto Test - Substantial Nexus

There must be a substantial nexus between the activity being taxed and the taxing state. A substantial nexus requires significant (i.e., more than minimum) contacts with, or substantial activity within, the taxing state. E.g., Quill Corp. v. North Dakota, 504 U.S. 298 (1992) (mailing of catalogs and shipment of goods to consumers in a state is not a sufficient nexus). If the business operates entirely outside of the state (such as a mail-order business), it must have some physical presence within the state to meet the substantial nexus requirement. Nat'l Bellas Hess v. Dep't of Revenue, 386 U.S. 753 (1967). However, the physical presence need not be related to the business being taxed. Nat'l Geographic Soc. V. California Bd. Of Equalization, 430 U.S. 551 (1977) (holding that the presence of two offices in the state created a substantial nexus to an out-of-state mail-order business even though the offices performed no activities related to mail-order sales).

Due Process Generally

These clauses operate at a number of levels to protect the rights of individuals and other "persons"—e.g., corporations—against the government. At the most basic level, each clause ensures that the federal and state governments must follow certain procedures before depriving any person of "life, liberty, or property." These safeguards, like notice and a hearing, are the cornerstone of procedural due process. At another level, the Fourteenth Amendment, through its guarantee of rights respecting life, liberty, and property, has been interpreted to make most provisions of the Bill of Rights (which by its terms applies to the federal government) applicable against the states as well. That is, the Fourteenth Amendment Due Process Clause incorporates the protections of the First, Second, and Fourth Amendments, as well as most of the protections of the Fifth, Sixth, and Eighth Amendments. (However, the Fifth Amendment right to grand jury indictment and the Sixth Amendment right to a unanimous jury verdict in a criminal trial are not incorporated. While the Eighth Amendment protections against cruel and unusual punishment and excessive bail are incorporated, it has not been determined whether the Eighth Amendment protection against excessive fines is incorporated.) The Seventh Amendment right to a jury in civil trials has been held not applicable to the states. Finally, both Due Process Clauses contain a "substantive" component that guarantees certain fundamental rights to all persons. This substantive due process acts as something of a catchall for rights not explicitly set forth elsewhere in the Constitution.

Vested-Rights Approach to Choice of Law

This approach, used in the Restatement (First) of Conflict of Laws, is a territorial approach. It looks to the jurisdiction where the parties' rights are vested, meaning where the act or relationship that gives rise to the cause of action occurred or was created. Generally, this approach looks for the location where the last liable event took place.

Due Process - privacy generally

Though it has not found that a generalized right to privacy is contained in the Constitution, the Supreme Court has recognized guaranteed "zones of privacy" under the Constitution. See Roe v. Wade, 410 U.S. 113 (1973). Various privacy rights have been deemed fundamental.

False Pretenses title must pass

Title to the property must pass from the victim to the defendant. Title can be obtained without possession of the property, but mere possession does not constitute false pretenses. If the defendant subjectively believes that he owns the property in question, he will not be guilty of false pretenses.

Obscenity Test

To be considered obscene, speech must meet each part of a three-prong test developed in Miller v. California, 413 U.S. 15 (1973). Under the Miller test, the average person, applying contemporary community standards, must find that the material, taken as a whole: i) Appeals to the "prurient interest"; ii) Depicts sexual conduct in a patently offensive way; and iii) Lacks serious literary, artistic, political, or scientific value.

Equal Protection Intermediate Scrutiny

To be constitutional, the law must be substantially related to an important governmental interest.

Criminal False Imprisonment - consent

To be effective, consent must be given freely, and the one consenting must have the capacity to do so.

Will Contract - Enforceability and Remedy

To be enforceable in most states, a contract relative to making or not making a will must be in writing and signed by the party sought to be charged; otherwise, the plaintiff may recover only his consideration, including the fair market value of any services rendered. Whether the contract is breached will not generally be known until after the testator's death. Thus, there is no remedy for a breach while the testator is still alive.

Surviving Spouse under intestacy - Marriage

To be entitled to take under an intestacy statute, the surviving spouse must have been legally married to the decedent. Generally, couples who live together do not qualify as spouses. A minority of jurisdictions, however, will afford couples who have registered as domestic partners or entered civil unions similar treatment to spouses for inheritance purposes.

Timing of Remedial Measures as Impeachment

To be excluded, the remedial measure must be undertaken after the plaintiff is injured; a remedial measure made after a product was manufactured but before the plaintiff was injured is not subject to exclusion under this rule. Fed. R. Evid. 407, Notes of Advisory Committee (1997).

New partner

To become a partner, a person must secure the consent of all of the existing partners. RUPA 401(i).

Rule 10b-5 - justifiable reliance

To maintain a Rule 10b-5 action, a plaintiff must establish that he relied on the defendant's fraudulent conduct. However, when the defendant's fraudulent conduct is not aimed directly at the plaintiff, such as if the defendant issues a press release, then courts have permitted the plaintiff to establish reliance by finding that the defendant's conduct constituted a fraud on the market. Basic, Inc. v. Levinson, 485 U.S. 224 (1988).

Testator capacity

To create a valid will, the testator must be at least 18 years of age and of sound mind. In some states, a conservator for an individual who lacks testamentary capacity can make a will for his conservatee if a court orders him to do so. A testator meets the requirement of mental capacity if she knows (i) the nature and extent of her property, (ii) the persons who are the natural objects of the testator's bounty and have the highest moral claims to the testator's property, (iii) the disposition the testator is attempting to make, and (iv) the interrelationship of these items in connection with the testamentary plan formulated in the will. All persons are afforded the presumption that they have mental capacity. As a result, the burden of proving that the testator lacks mental capacity rests on the contestant to the will.

Domicile by Choice - Intent

To establish a location as the domicile, a person must demonstrate, in addition to physical presence in a location, the intent to make the location his home for the time being, or the absence of an intent to go elsewhere. Presence under compulsion, such as a person in prison, will not establish domicile by choice. Permanency is not required, but the intent to remain must be bona fide. In general, the person's actions and statements are used to establish intent. Ownership of real estate, voting, payment of taxes, having a bank account, or registration of an automobile are all factors that could be used to establish intent; however, none of these factors is conclusive.

Raising the issue of Standing in Fourth Amendment

To establish that a search violated his Fourth Amendment rights, a defendant must show a legitimate expectation of privacy with regard to the search (see §I.C.2., supra). To make such a showing, which is sometimes referred to as "standing," the defendant may have to admit facts that would incriminate him. Consequently, testimony given by the defendant to establish standing cannot be admitted as evidence against the defendant at trial.

Testamentary capacity

To execute or revoke a will, the testator must be at least 18 years old and possess a sound mind at the time of execution or revocation. The testator lacks the requisite mental capacity if he, at the time of execution, did not have the ability to know the: i) Nature of the act; ii) Nature and character of his property; iii) Natural objects of his bounty; and iv) Plan of the attempted disposition. The testator need only have the ability to know; actual knowledge is not required. Old age alone is insufficient to constitute lack of capacity. Courts will uphold wills of elderly testators who at least grasp the big picture about their financial affairs. Adjudication of incompetence is not dispositive on the issue of testamentary capacity; the above-listed factors must also be applied. The burden of proof is on the party alleging testamentary incapacity. Only those parties that would financially benefit, if successful, have standing to contest a will. Some states also require a deficiency in one of the following areas to prove lack of capacity: alertness and attention, information processing, thought processing, or mood modulation. Such deficiencies are also considered only if they significantly interfere with the individual's ability to understand and appreciate the consequences of his actions.

Notice of appraisal

To exercise the right of appraisal, a shareholder must send a written notice to the corporation of her intent to do so. This notice must be delivered to the corporation before the shareholders vote on the proposed action. RMBCA §13.21(a).

Actual Conflict and ineffective assistance of counsel

To find an actual conflict, a court must determine that the defense attorney is subject to an obligation or unique personal interest that, if followed, would lead her to adopt a strategy other than that most favorable to the defendant.

Certificate of limited partnership

To form a limited partnership, a certificate of limited partnership must be filed with the state. RULPA 201(a). The certificate must contain only the name of the limited partnership, its in-state address, the name and address of its in-state agent for service of process, the name and business address of each general partner, and a statement about the duration of the limited partnership. All of the general partners must sign the certificate. RULPA 201(a), 204(a)(1).

Partnership intent

To form a partnership, at least two persons must intend to carry on a business for profit as co-owners, but it is not necessary that such persons have the specific intent to form a partnership. In fact, co-owners' subjective intent not to form a partnership does not prevent the association from being a partnership. RUPA202(a).

Article III Standing Rule

To have standing, a plaintiff bears the burden of establishing three elements: i) Injury in fact; ii) Causation (the injury must be caused by the defendant's violation of a constitutional or other federal right); and iii) Redressability (the relief requested must prevent or redress the injury). See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982). In addition to the Article III requirements, the federal judiciary has also established a "prudential standing" requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute. Bender v. Williamsport Area School District, 475 U.S. 534 (1986). Meeting this requirement depends in large part on whether the plaintiff's grievance comes within the "zone of interests" protected or regulated by the constitutional guarantee or statute under consideration. Bennett v. Spear, 520 U.S. 154 (1997); Thompson v. N.Am. Stainless, LP, 562 U.S. 170 (2011).

Vehicle search incident to arrest

To justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer's safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.Arizona v. Gant, 556 U.S. 332 (2009).

Accomplice Withdrawal

To legally withdraw (and therefore avoid liability for the substantive crime), the accomplice must (i) repudiate prior aid, (ii) do all that is possible to countermand prior assistance, and (iii) do so before the chain of events is in motion and unstoppable. A mere change of heart, a flight from the crime scene, an arrest by law enforcement, or an uncommunicated decision to withdraw is ineffective. Notification to the legal authorities must be timely and directed toward preventing others from committing the crime.

Rule 10b-5 - transfer of security

To maintain a Rule 10b-5 action, the plaintiff must have either bought or sold a security. A person who refrains from buying or selling a security because of the defendant's conduct cannot bring a Rule 10b-5 action for damages. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975). (Note: Courts are split as to whether a private action for injunctive relief is possible by someone who did not buy or sell stock. However, the SEC can bring such an action.) The defendant is not required to be a participant in the transaction. Only the plaintiff must be a buyer or seller.

Corporate merger procedure

To merge: i) The board of directors for each corporation must approve of the merger; ii) The shareholders of each corporation must usually approve of the merger; and iii) The required documents (e.g., plan of merger, amended articles of incorporation) must be filed with the state. RMBCA §11.04.

Fairness of death penalty sentencing

To minimize the risk of arbitrary action, a capital sentencing process must satisfy, at a minimum, two general requirements: i) The process must channel or limit the sentencer's discretion in order to genuinely narrow the class of persons eligible for the death penalty and reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder; and ii) The court must allow the jury to consider any relevant mitigating evidence that might lead the sentencer to decline to impose the death penalty. The sentencer is also allowed to take into consideration victim impact statements. If the state puts a capital defendant's future dangerousness at issue, the defendant has the right to inform the jury that the only possible sentence besides death is life imprisonment without parole. Lynch v. Arizona, 578 U.S. ___, 195 L. Ed. 2d 99 (2016).

Wiretapping warrant

To obtain a warrant authorizing a wiretap, officers must satisfy the below requirements. The warrant must: i) Be limited to a short period of time; ii) Demonstrate probable cause that a specific crime has been or is about to be committed; iii) Name the person or persons to be wiretapped; iv) Describe with particularity the conversations that can be overheard; and v) Include provisions for the termination of the wiretap. Upon termination of the wiretap, the conversations that have been intercepted must be shown to the court. Note that a person assumes the unreliability of those to whom she speaks and has no Fourth Amendment claim if she finds out later that the listener was wired or recording the conversation. United States v. White, 401 U.S. 745 (1971). Furthermore, a speaker who makes no attempt to keep his conversation private has no Fourth Amendment claim. Katz v. United States, 389 U.S. 347 (1967). In addition, a wiretap related to domestic security surveillance requires that a neutral and detached magistrate—not the president—make the determination that a wiretapping warrant should issue, and the wiretap must comply with the Omnibus Crime Control and Safe Streets Act. However, there is no requirement for prior authorization when a covert entry is planned to install the electronic equipment, or when a pen register is used.

Overcoming business judgment rule

To overcome the business judgment rule, it must be shown that: i) The director did not act in good faith (e.g., consciously allowing conduct that violates the law or legal norms; intense hostility of the controlling faction against the minority; exclusion of the minority from employment by the corporation; high salaries or bonuses given, or corporate loans made to, the officers in control; and the existence of a desire by the controlling directors to acquire the minority stock interests as cheaply as possible); ii) The director was not informed to the extent that the director reasonably believed was necessary before making a decision; iii) The director did not show objectivity or independence from the director's relation to or control by another having material interest in the challenged conduct; iv) There was a sustained failure by the director to devote attention to an ongoing oversight of the business and affairs of the corporation; v) The director failed to timely investigate a matter of significant material concern after being alerted in a manner that would have caused a reasonably attentive director to do so; or vi) The director received a financial benefit to which he was not entitled, or any other breach of his duties to the corporation. RMBCA §8.31(a).

Subsequent instruments and inconsistency

To the extent possible, the will and any codicils are read together. If there are inconsistencies, then the later document controls and revokes the prior inconsistencies. If a later will contains a residuary clause (e.g., "I leave all remaining assets of my estate to my brother"), then it revokes the first will by inconsistency. If a later will has an express revocation clause, then the first will is revoked.

Inter vivos trusts - type of property

To transfer real property to a trust, the declaration of trust must be in a writing that satisfies the Statute of Frauds. However, a writing is not required to transfer personal property to a trust, and extrinsic evidence generally is allowed to clarify ambiguities. The trustee takes legal title upon the delivery of a deed or other document of title for real property, or upon the delivery of personal property.

Gift classification

Traditionally, a "devise" refers to a gift of real property by will, and a "bequest" or "legacy" refers to a gift of personal property by will. In most states and the UPC, "devise" is used generically to refer to any type of gift. Classifying gifts establishes the order of distribution and abatement if the estate's assets are insufficient to satisfy all of the gifts contained in the will. The judiciary often assigns classifications with reference to the intention of the testator when the will was written. The classes of gifts made under the will are distinguished by the type of item given.

Number of directors on board

Traditionally, a board needed three or more directors, but today a board can have as few as one director, regardless of the number of shareholders. In its articles of incorporation or bylaws, a corporation may permit the board to vary the number of directors. RMBCA § 8.03.

Trust termination - revocation by divorce

Traditionally, a spousal interest created by a trust, unlike one created by a will, was not revoked upon divorce. However, the trend now is to treat a spousal interest under a trust similarly to one under a will. See UPC § 2-804.

Rape - with a female

Traditionally, the victim of rape could only be a woman. Most states recognize homosexual rape as a crime labeled "sexual assault" rather than rape. Most states also have defined rape in a gender-neutral manner; under such statutes, a woman could be the perpetrator of a rape.

Types of corporate securities

Traditionally, there are two broad types of securities by which a corporation secures financing for its endeavors: stocks, which carry ownership and control interests in the corporation, and debt securities, which do not. Over time, many securities have been created that blur this distinction. However, every corporation is required to have stock that is entitled to vote on matters of corporate governance (e.g., the election of directors to the board) and stock that represents the basic ownership interest in a corporation. RMBCA §6.01(b). Stocks that possess these two characteristics are referred to as "common stock." Stocks having preference over other stock to such items as distributions are referred to as "preferred stock." In general, upon liquidation, a secured creditor of the corporation will generally take precedence over a preferred shareholder with regard to the corporation's funds, and a preferred shareholder will take precedence over a common shareholder. Preferred shareholders generally take precedence over common shareholders with regard to distributions by the corporation.

Wills and ambiguities

Traditionally, there was a distinction between patent and latent ambiguities: patent ambiguities appeared on the face of the will and were required to be resolved within the four corners of the instrument but without extrinsic evidence; latent ambiguities were not apparent from a reading of the will and were allowed to be resolved by extrinsic evidence. Many states no longer distinguish between patent and latent ambiguities and allow both to be resolved by extrinsic evidence. If the ambiguity cannot be resolved, then the gift in question becomes part of the residue. A few states have adopted the Restatement (Third) of Property's more liberal approach, which allows a court to reform a donative document based on clear and convincing evidence of (a) a mistake of law or fact or (b) the donor's intention.

Criminal Merger

Traditionally, under the doctrine of merger, if a person's conduct constitutes both a felony and a misdemeanor, then the misdemeanor merges into the felony, and the person can be convicted of the felony but not the misdemeanor. However, if the crimes are of the same degree, i.e., all felonies or all misdemeanors, then there is no merger of the crimes. Modern law does not subscribe to the doctrine of merger based on the felony-misdemeanor distinction, but does apply this doctrine with respect to solicitation and attempt and the solicited or completed crime. A defendant may be tried, but not punished, for solicitation and the completed crime or for attempt and the completed crime. Solicitation and attempt are said to "merge" into the completed crime. In addition, a defendant may be concurrently prosecuted, but not punished, for more than one inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime. MPC 5.05(3). Note: The Double Jeopardy Clause generally prohibits a defendant from being convicted of both a crime and a lesser-included offense (i.e., an offense all the elements of which are also elements of the more-significant crime), such as robbery and larceny. Many jurisdictions characterize this prohibition as a "merger" of the lesser-included offense into the greater. For further discussion of double jeopardy, please refer to the Themis Criminal Procedure outline.

Trickery and Miranda

Trickery by the police or false promises made to the accused by the police may render a confession involuntary. However, deceit or fraud by the interrogators (i.e., lying about a co-conspirator's confession) does not itself make the confession involuntary.

Expenses charged to trust income

Trust income will be charged with the following expenses: i) One-half of the regular compensation to the trustee and to those who provide investment, advisory, or custodial services to the trustee; ii) One-half of accounting costs, court costs, and the costs of other matters affecting trust interests; iii) Ordinary expenses in their entirety; and iv) Insurance premiums that cover the loss of a trust asset.

Expenses charged to trust principal

Trust principal will be charged with the following expenses: i) The remaining one-half of the regular compensation to the trustee and to those who provide services to the trustee; ii) The remaining one-half of accounting costs, court costs, and the costs of other matters affecting trust interests; iii) All payments on the principal of any trust debt; iv) All expenses of any proceeding that concerns an interest in principal; v) Estate taxes; and vi) All payments related to environmental matters.

Trust property segregation

Trust property must be identifiable and segregated. The property must be described with reasonable certainty.

Unborn children exception for trusts

Trusts for the benefit of unborn children will be upheld even though the beneficiaries are not yet ascertainable at the time the trust is created.

Blockburger test

Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not. Texas v. Cobb, 532 U.S. 162 (2001); Blockburger v. United States, 284 U.S. 299, 304 (1932).

Types of corporate officers

Typically, a corporation's officers are composed of a president, secretary, and treasurer. An individual may hold more than one office, but some states prohibit a person from serving dual roles when such officers serve as a check on each other. The RMBCA does not specify which officers a corporation must have, but it simply indicates that the corporate bylaws are responsible for delineating the officers of the corporation. RMBCA §8.40.

Terms of Board of Directors

Typically, a director serves for a one-year term that expires at the first annual meeting after the director's election. RMBCA § 8.05. A director may serve for longer than one year if the terms are staggered. With staggered terms, each year some directors are elected for multiyear terms. The main purpose of staggered terms is to limit the impact of cumulative voting. RMBCA §§8.05, 8.06. A director whose term has expired may continue to serve until a replacement is selected. RMBCA §8.05(e).

Directors staggered terms

Typically, all directors of the corporation are elected annually. However, some corporations provide for the election of fewer than all of the directors, thereby staggering the terms of the directors, which provides for some continuity on the board from election to election. The main purpose for staggered terms is to limit the impact of cumulative voting.

Voting Power

Typically, each share of stock is entitled to one vote. However, a corporation, through its articles of incorporation, can create classes of stock that have greater voting power (e.g., each share is entitled to five votes) or that cannot vote (i.e., nonvoting stock). RMBCA §7.21(a).

Board of Directors - type of committees

Typically, the board of a publicly held corporation has an audit committee, a compensation committee, and a nominating committee. A corporation with stock listed on a national securities exchange or a national securities association must have an audit committee that has direct responsibility for selecting, compensating, and overseeing the corporation's outside auditors. The members of the audit committee must be independent directors (i.e., not otherwise employed or compensated by the corporation). Outside auditors cannot otherwise be employed by the corporation. Sarbanes-Oxley Act 301.

Allocation of LLC profits and losses

Typically, the operating agreement of the LLC determines the manner in which profits and losses will be allocated among the members of the LLC. In the absence of such an agreement, profits and losses are allocated and distributions are made according to each member's contributions to the LLC.

Manner of taking

Typically, when a property owner objects to the seizure of his property by the government, the government will institute condemnation proceedings, and the property owner can raise the Takings Clause as a defense to this action. When the governmental action that allegedly constitutes a taking is a statute, regulation, or ordinance, the property owner may institute a suit seeking an injunction or a declaratory judgment; this type of legal action is sometimes referred to as an inverse condemnation.

Federal-to-state recognition of judgments

Under 28 U.S.C. § 1738, federal courts must also give full faith and credit to state court judgments. The same rules as discussed above for states apply with respect to a federal court. A federal court will not give greater effect to a state court judgment than the state itself would give.

Full Faith and Credit Limitations to Choice of Law

Under Article IV, § 1 of the U.S. Constitution, "[f]ull faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State." The Supreme Court has held that the term "public acts" includes both a state's statutes and its substantive case law. Carroll v. Lanza, 349 U.S. 408 (1955). The Full Faith and Credit Clause requires a forum state to apply the law of another state when the forum state has no contacts with or interest in the controversy, but it does not prevent the forum state from applying its own law when the forum has such contacts or interest in the controversy. Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). In addition, the Full Faith and Credit Clause does not require a state to apply another state's law in violation of its own legitimate public policy. Franchise Tax Bd. of California v. Hyatt, 538 U.S. 488 (2003).

Conflict-of-Laws Rules in Federal Diversity Cases

Under Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941), in federal diversity cases, the federal district court is generally required to apply the conflict-of-laws rules of the state in which it sits. However, such application of a state's conflict-of-interest rules is required only to the extent that the state's rules are valid under the Full Faith and Credit and Due Process Clauses of the U.S. Constitution. Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). If a diversity case was transferred from a federal court in another state under federal venue law, 28 United States Code ("U.S.C.") § 1404(a), then the first state's choice-of-law rules will be applied. Van Dusen v. Barrack, 376 U.S. 612 (1946).

Death penalty and racial discrimination

Under McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court held that despite serious statistical evidence of racial disparity in the imposition of the death penalty (e.g., African-American defendants who kill white victims are more likely to receive the death penalty), it was not imposed as a result of unconstitutional discrimination.

Trust distributions of stock

Under UPAIA § 6(a) and most states, a distribution of stock, whether classified as a dividend or as a split, is treated as a distribution of principal. This is also true under the Revised Uniform Principal and Income Act (RUPIA). The RUPIA gives a trustee a limited power to allocate the stock dividend between income and the principal when the distributing corporation made no distributions to shareholders except in the form of dividends paid in stock.

Unitrust

Under a unitrust, the distinction between income and principal is not relevant because the lifetime beneficiaries are entitled to a fixed annual share of the value of the trust principal.

Probate under UPC

Under common law, a will could be probated at any time, even decades after the testator's death. The UPC provides that probate proceedings must be brought within three years of death, after which there is a presumption of intestacy. The party requesting probate can choose to have it occur through either ex parte probate or notice probate. Unif. Probate Code § 3-102.

Bribery

Under common law, bribery was a misdemeanor involving the corrupt payment of something of value for the purpose of influencing the action of an official in the discharge of his public or legal duties. Under modern law, bribery can be a felony and may extend to persons who are not public officials. Mutuality is not required. Further, the offering or taking of a bribe may constitute a felony as well. In some jurisdictions, failure to report a bribe constitutes a misdemeanor.

Lapse

Under common law, if a beneficiary died before the testator, or before a point in time by which he was required to survive the testator under the will, then the gift failed and went to the residue unless the will provided for an alternate disposition. Absent a residuary clause, the gift passed through intestacy. A gift made by will to an individual who was deceased at the time the will was executed was treated as a lapsed gift.

Negative inheritance

Under common law, the only way for an individual to disinherit an heir was to execute a will disposing of all of his property, because any property not so disposed of could potentially pass to that heir through intestacy. The UPC allows an individual to disinherit an heir by properly executing a will expressing such intent, even if not all property is disposed of within the will. The barred heir is then treated as having predeceased the decedent. Unif. Probate Code § 2-101(b).

Conspiracy - Unlawful Purpose

Under federal law and the modern trend, "unlawful purpose" is limited to criminal conduct. In some states, even the achievement of a lawful purpose through illegal means can be the subject of a conspiracy.

Homestead Exemption

Under homestead exemption statutes, which vary by state, a certain acreage or value of real property is exempt from creditors' claims, is inalienable during the life of the owners without consent, and passes upon death by statute, not by will. The amount of the homestead exemption differs by state, but the UPC as amended in 2008 recommends a lump sum payment of $22,500, up from $15,000. Any minor child or children of the decedent are entitled to the exemption amount in the absence of a surviving spouse.

Criminal Victim's Sexual Conduct as evidence

Under the "rape shield" rule, evidence offered to prove the sexual behavior or sexual predisposition of a victim (or alleged victim) generally is not admissible in any civil or criminal proceeding involving sexual misconduct. The exclusion applies to the use of such evidence for impeachment as well as substantive purposes. Sexual behavior includes not only sexual intercourse or contact but also activities that imply such sexual intercourse or contact, such as the use of contraceptives or the existence of a sexually transmitted disease. Sexual predisposition can include the victim's mode of dress, speech, or lifestyle. Fed. R. Evid. 412(a), Notes of Advisory Committee (1994).

Unity of Interest and Ownership test

Under the "unity of interest and ownership" test, a petitioner must demonstrate that there was such a unity of interest and ownership between the entity and the members that, in fact, the LLC did not have an existence independent of the members and that failure to pierce the veil through to the members would be unjust or inequitable.

Trust termination - unfulfilled material purpose

Under the Claflin doctrine, a trustee can block a premature trust termination—even one to which all of the beneficiaries have consented—if the trust is shown to have an unfulfilled material purpose. Examples of a trust that intrinsically has an unfulfilled material purpose include discretionary trusts, support trusts, spendthrift trusts, and age-dependent trusts (those that direct the payment of principal to a beneficiary only after he attains a certain age). The most common example of a trust that has an unfulfilled material purpose is one in which the settlor provided for successive interests, in which case both the present and the future beneficiaries must agree in order for the trust to be terminated prematurely. Restatement (Third) of Trusts §65(2). If a testator leaves property "to A for life, remainder to B," and B dies before A, leaving his interest to A, then A may terminate the trust because its purpose has been accomplished.

Durham Rule

Under the Durham rule, a defendant is not guilty if the unlawful act was the product of the defendant's mental disease or defect and would not have been committed but for the disease or defect. This is the "but-for" test.

Majority-minority districts

Under the Equal Protection Clause, election districts for public office may not be drawn using race as the predominant factor in determining the boundary lines, unless the district plan can survive strict scrutiny. This restriction applies even when the district is drawn to favor historically disenfranchised groups. The state can use traditional factors—such as compactness, contiguity, or honoring political subdivisions—as the bases for the district, and it may only consider race if it does not predominate over other considerations. Miller v. Johnson, 515 U.S. 900 (1995). To be narrowly tailored within the strict scrutiny standard, the legislature must have a "strong basis in evidence" in support of the race-based choice that it has made. Note that the legislature need not show that its action was actually necessary to avoid a statutory violation, only that the legislature had good reasons to believe its use of race was needed. Bethune-Hill v. Virginia State Bd. Of Elections, 580 U.S. ___ (2017), Alabama Legislative Black Caucus, et al. v. Alabama et al., 575 U.S. ___, 135 S. Ct. 1257 (2015). A district's bizarre shape can be used as evidence that race was a predominating factor, but such a shape is not necessary for a finding of racial gerrymandering. Shaw v. Reno, 509 U.S. 630 (1993).

Defense Against Foreign Law - Federal Diversity

Under the Erie doctrine, in diversity jurisdiction cases, federal district courts must apply the substantive law of the state where the court sits. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). The Erie doctrine does not require that the state's procedural laws be applied, however, and if a Federal Rule of Civil Procedure addresses the procedural issue at hand, then that rule will be applied. If no federal rule applies, then the district court must follow state law with regard to substance, but it can choose to ignore state law with regard to procedure, under certain circumstances. To determine whether a given law is substantive or procedural, the court considers whether the failure to apply state law would lead to different outcomes in state and federal courts. If the answer is yes, then the court will generally apply state law.

Gerstein Hearing

Under the Fourth Amendment, a preliminary hearing must be held after the defendant's arrest to determine whether probable cause exists to hold the defendant, unless such determination has already been made before the defendant's arrest through a grand jury indictment or the judicial issuance of an arrest warrant. Gerstein v. Pugh, 420 U.S. 103 (1975). This hearing, known as a Gerstein hearing, need not be adversarial. There is no right to counsel at this hearing, and hearsay evidence may be introduced, but a hearing not held within 48 hours after arrest is presumptively unreasonable. County of Riverside v. McLaughlin, 500 U.S. 44 (1991). However, the failure to hold this hearing does not affect the prosecution of the defendant for the charged offense, other than the exclusion of any evidence discovered as a consequence of the unlawful detainment. Under the Fifth Amendment, all felony charges must be by indictment of a federal grand jury, unless waived by the defendant.

M'Naghten test

Under the M'Naghten test, the defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know either (i) the nature and quality of the act or (ii) the wrongfulness of the act. Without knowing that the act is wrong, a defendant could not have formed the requisite criminal intent. Therefore, it is important to assess whether the defendant's actions would have been criminal if the facts, as he believed them to be, supported his delusions. However, a defendant is not necessarily exculpated simply because he believes his acts to be morally right, although a few states do allow for such a defense. Loss of control because of mental illness is not a defense under this test. This is the "right from wrong" test.

Pinkerton Rule

Under the Pinkerton Rule, a conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy. Under the MPC, the minority view, a member of the conspiracy is not criminally liable for such crimes unless that member aids and abets in the commission of the crimes.

Contract Default Rules under Most-Significant-Relationship Approach

Under the Restatement (Second) of Conflict of Laws approach, there are also default rules that apply to certain kinds of contracts. These default rules will generally apply unless another state is found to have a more significant relationship with regard to the issue. i) Land contracts are controlled by the law of the state of the situs of the land; ii) Personalty contracts are controlled by the law of the state where the place of delivery is located; iii) Life-insurance contracts are controlled by the law of the state where the insured is domiciled (see § I Domicile, supra, for a discussion of the rules regarding domicile); iv) Casualty insurance contracts are controlled by the law of the state where the insured risk is located; v) Loans are controlled by the law of the state where repayment is required; vi) Suretyship contracts are controlled by the law of the state governing the principal obligation; and vii) Transportation contracts (covering both persons and goods) are controlled by the law of the state where the place of departure is located.

Corporate disclosure of financial statement

Under the SEC, publicly held corporations that have issued securities are required to supply shareholders with an annual audited financial statement. Securities Exchange Act of 1934 Rule 14(a); Securities Acts Amendments of 1964 Rule 14(c). Likewise, the RMBCA requires all corporations to furnish shareholders with an annual financial statement. RMBCA §16.20.

Due Process - right to vote

Under the Twenty-Sixth Amendment, the right to vote is fundamental to all U.S. citizens who are 18 years of age or older. This right applies to all federal, state, and local elections, including primary elections. Despite being a fundamental right, strict scrutiny does not apply to all laws that restrict this right. The level of scrutiny to which a governmental restriction of this right is subject depends on the degree to which the restriction affects the exercise of this right; the more significant the impact, the greater the degree of scrutiny. Burdick v. Takushi, 504 U.S. 428 (1992); Crawford v. Marion County Election Bd., 553 U.S. 181 (2008).

"Self-Proved Will"

Under the UPC, a will that is executed with attesting witnesses may be made "self-proved" by the acknowledgment of the testator and affidavits of the witnesses before a court officer in substantial accordance with a prescribed form. The effect of executing a "self-proved will" is that it removes the necessity for testimony of the attesting witnesses in formal probate. Unif. Probate Code § 2-504. Moreover, in many jurisdictions, the witnesses' signatures on an affidavit may be counted as signatures on the will if the witnesses failed to sign the actual will.

Omitted Spouse under the UPC

Under the UPC, an omitted spouse has the right to receive no less than her intestate share of the deceased spouse's estate from that portion of the testator's estate that is not already devised to a child or descendant of the testator if: i) The child is not a child of the surviving spouse; and ii) The child was born before the testator married the surviving spouse. The UPC expands the allowable evidence to include any other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse. Unif. Probate Code § 2-301.

Residuary Rule and Future Interests

Under the UPC, if the residue is left to two or more persons and one dies, and if anti-lapse does not apply, then the remaining beneficiaries take in their proportionate shares. Unif. Probate Code § 2-604(b). This is contrary to the common-law "no residue of a residue" rule, under which the testator's heirs succeeded to any lapsed portion of a residual bequest. Likewise, if a future interest is left to two or more persons and the gift to one of them lapses, then her share passes to the other future interest holders unless anti-lapse applies.

Scope of Slayer doctrine

Under the UPC, the homicide doctrine applies to all property, whether probate or nonprobate. Purchasers of such property for value and without notice are protected, but the killer is liable for the proceeds.

Augmented Estate's Increasing Share

Under the UPC, the surviving spouse may take an elective-share amount equal to 50% of the value of the marital-property portion of the augmented estate. The marital-property portion is calculated by applying to the augmented estate a schedule of percentages that increase as the length of the marriage increases (e.g., 6% for the first year, 30% at five years). Unif. Probate Code § 2-203(a).

Ademption - "intent theory"

Under the UPC, the testator's intent at the time he disposed of the subject matter of the bequest is examined. The UPC has essentially created a "mild presumption" against ademption and has created several doctrines to avoid it. The bequest to the beneficiary is adeemed if the facts and circumstances establish that the ademption was intended. The UPC permits a beneficiary of a specific extinct gift to inherit the property acquired by the testator as replacement property or, if the testator is owed money relating to the extinction, the outstanding balance. Unif. Probate Code § 2-606(a). If neither the replacement property nor the outstanding balance doctrine applies, then the UPC provides that a beneficiary of a specific gift is entitled to money equivalent to the value of the specific property as of the date of disposition if ademption is inconsistent with the testator's: i) Intent; or ii) Plan of distribution.

Foreign Wills and International WIlls

Under the Uniform International Wills Act (UIWA), a will is valid irrespective of the place where it was made, the location of the testator's assets, and his nationality, domicile, or residence, provided it complies with the act. The UIWA requires that the will be in writing, signed, and witnessed by two individuals plus a third person who is authorized to act in connection with international wills and who must prepare a certificate to attach to the will. The testator must declare the instrument to be his will and demonstrate knowledge of its contents.

Wharton Rule

Under the Wharton Rule, if a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime. Although there is no conspiracy, the participants may be found guilty of the underlying crime itself. Because the MPC does not require the participation of at least two conspirators, this rule does not apply to conspiracies under the MPC.

Bespeaks-caution doctrine

Under the bespeaks-caution doctrine, a statement of opinion or prediction accompanied by adequate cautionary language does not constitute a false or misleading statement. Securities Exchange Act Rule 21E.

Pour-over trust validity

Under the common-law doctrine of "incorporation by reference," if a will refers to an unattested document in existence at the time the will is signed, then the terms of that document could be given effect in the same manner as if it had been properly executed. Under this doctrine, for example, the terms of an amended revocable trust would not apply to the disposition of the probate estate assets because the amendment was not in existence at the time the will was executed. However, the necessity for this doctrine has been obviated under the Uniform Testamentary Additions to Trusts Act (UTATA), codified at the Uniform Probate Code (UPC) § 2-511. Under the UTATA, a will may "pour over" estate assets into a trust, even if the trust instrument was not executed in accordance with the Statute of Wills, as long as the trust is identified in the will, and its terms are set forth in a written instrument. Furthermore, if these requirements are met, the pour-over bequest is valid even if the trust is unfunded, revocable, and amendable. UPC §2?511.

Exoneration of Liens

Under the common-law doctrine of exoneration, the specific devisee of encumbered real property was entitled to have the mortgage on the property paid from the estate as a debt of the decedent, unless there was evidence of a contrary intent on the part of the testator. However, in most states, the specific devisee of encumbered property takes subject to the mortgage, notwithstanding the fact that the will contained a clause directing the executor to pay the decedent's debts. A specific devisee of encumbered property is not entitled to have the debt paid off by the residual estate unless the testator's intent to do so is clear in the will. Unif. Probate Code § 2-607. A testator can specifically require that a lien be exonerated, in which case the encumbered property will not abate to exonerate the lien unless specifically stated in the will.

Judicial Limitation on Congressional Power

Under the doctrine of separation of powers, Congress may not reinstate the right to bring a legal action after the judgment in the action has become final. Similarly, Congress cannot prescribe rules of decision to the federal courts in cases pending before it. United States v. Klein, 80 U.S. 128 (1872). However, when Congress changes the law underlying a judgment awarding ongoing relief, that relief is no longer enforceable to the extent it is inconsistent with the new law. Miller v. French, 530 U.S. 327 (2000).

Different jurisdictions and double jeopardy

Under the dual-sovereignty doctrine, the protection against double jeopardy does not preclude prosecution of a crime by both federal and state governments. Consequently, a defendant may be charged and convicted for the same type of crime in a federal court and a state court. Similarly, a defendant may be prosecuted by two different states for the same conduct. However, a state and state-created entity, such as a municipality, cannot both prosecute a defendant for the same conduct. Waller v. Florida, 397 U.S. 387, 394 (1970) (municipality's conviction of defendant for violation of city ordinance for destruction of city property precluded state prosecution for grand larceny).

Partner duty of loyalty

Under the duty of loyalty, a partner is required to refrain from the following activities: i) Competing with the partnership business; ii) Advancing an interest adverse to the partnership; and iii) Usurping a partnership opportunity or otherwise using partnership property or business to derive a personal benefit, without notifying the partnership. RUPA 404(b).

Registration of securities

Under the federal Securities Act of 1933, a corporation that issues stock or other securities may be required to register the security with the U.S. Securities and Exchange Commission (SEC). In addition to filing the required registration statement with the SEC, which involves significant disclosures about the company offering the security, the issuer is also required to provide the buyer of the security with a prospectus. The prospectus represents the main part of the registration statement, and it includes information about the company, its business, and its financial performance.

Governmental-Interest Approach

Under the governmental-interest approach, it is presumed that the forum state will apply its own law, but the parties may request that another state's law be applied. If a party makes such a request, then that party must identify the policies of competing laws. If there is a false conflict (i.e., the forum has no interest in the litigation), then the court applies the law of the state that does have an interest in the case. If there is a true conflict (i.e., the forum state and another state both have an interest in the litigation), then the forum state will review its own policies to determine which law should apply. If the conflict cannot be resolved, then the law of the forum state is applied. However, if the forum state has no interest in applying its own laws (i.e., is a disinterested forum), and the doctrine of forum non conveniens is available, then the forum court should dismiss the case. The doctrine of forum non conveniens allows a court to dismiss an action, even if personal jurisdiction and venue are otherwise proper, if it finds that the forum would be too inconvenient for parties and witnesses and that a more convenient venue is available. Some of the factors that are generally considered include: (i) the availability of an alternative forum, (ii)the law that will apply, and (iii) the location of the parties, witnesses, and evidence. If forum non conveniens is not available, then the forum state may either make its own determination as to which law is better to use or apply the law that most closely matches its own state law. If no state has an interest, then the forum law generally prevails. States have an interest in applying their conduct-regulating laws (i.e., laws designed to regulate conduct) when the wrongful conduct occurs within their territory or when a state domiciliary is injured. States have an interest in applying their loss-shifting laws (i.e., immunize people from liability) when doing so would benefit a state domiciliary.

Irresistible-impulse test

Under the irresistible-impulse test, the defendant is not guilty if he lacked the capacity for self-control and free choice because mental disease or defect prevented him from being able to conform his conduct to the law. The loss of control need not be sudden. This is an impulse that the defendant cannot resist.

Accomplice's mental state - majority and MPC

Under the majority and MPC rule, a person is an accomplice in the commission of an offense if he acts with the purpose of promoting or facilitating the commission of the offense. The accomplice must solicit, aid, agree, or attempt to aid in the planning or commission of the crime, with the intent that the crime actually be committed. Model Penal Code § 2.06(3). Mere knowledge that another person intends to commit a crime is not enough to make a person an accomplice.

Undue Influence on Testator traditional test

Under the majority view, the undue influence doctrine has the following elements, all four of which must be shown: i) Susceptibility (the testator was susceptible to being influenced); ii) Motive or predisposition (the influencer had reason to benefit); iii) Opportunity (the influencer had the opportunity to influence); and iv) Causation (the influencer caused an unnatural result).

Duty and partnership dissociation or dissolution

Upon a partner's dissociation from a partnership or upon the partnership's dissolution, these duties do not apply unless the partner is engaged in winding up the partnership business. When a partner or the representative of the last surviving partner is engaged in winding up the partnership business, these duties are generally applicable, with the exception of the noncompete aspect of the duty of loyalty. RUPA 404(g).

Parties to a crime

Under the modern rule, in most jurisdictions, the parties to a crime can be a principal, an accomplice (accessory before the fact), and an accessory after the fact. At common law, the principal was called the principal in the first degree, and an accessory before the fact who was actually or constructively present at the scene of the crime was called the principal in the second degree. An accomplice who was not present at the crime scene was called an accessory before the fact or after the fact, depending on when he provided assistance.

Real Property and Most-Significant-Relationship Approach

Under the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, the law of the situs of the real property is generally presumed to be most significant. See § II.B.2 Most-Significant-Relationship Approach, supra, for the seven factors that are generally used to determine the most significant relationship.

Contracts and Most-significant-relationship approach

Under the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, the seven policy factors (discussed at § II.B.2 Most-Significant-Relationship Approach, supra) are considered, as are the following: i) The location of the contracting, negotiation, and performance; ii) The place where the contract's subject matter is located; and iii) The location of the parties' domiciles, residences, nationalities, places of incorporation, and places of business. Generally, when the location of negotiation and performance are the same, the forum court will apply the law of that state.

Torts and Most-Significant-Relationship Approach

Under the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, the seven policy principles discussed at § II.B.2 Most-Significant-Relationship Approach, supra, are applied to determine the applicable substantive rules of law. Within the context of those principles, the court considers four important contacts: (i) the place of the injury, (ii) the place where conduct causing injury occurred, (iii) the domicile, residence, place of incorporation, or place of business of the parties, and (iv) the place where the relationship is centered. Restatement (Second) of Conflict of Laws § 145. In tort matters, the default rule under the Restatement (Second) of Conflict of Laws approach is that the place of injury controls, unless another state has a more significant relationship to the parties or to the occurrence of the tort.

Intangible Property and Most-Significant-Relationship Approach

Under the most-significant-relationship approach of the Restatement (Second) of Conflict of Laws, the transfer of intangible property is governed by the law of the state to which the transaction is most significantly related. See §II.B.2 Most-Significant-Relationship Approach, supra, for the seven factors that are generally used to determine the most significant relationship.

Entrapment - objective approach

Under the objective approach, which has been advanced by the MPC and adopted by a few states, the focus is on the government's action and the effect those actions would have on a hypothetical innocent person. This approach requires the government official or agent to have induced or encouraged the defendant to commit a crime by employing methods of persuasion or inducement that create a substantial risk that the crime will be committed by an otherwise law-abiding citizen.

Dépeçage

Under the traditional approach to choice of law, the forum court is required to analyze a case in its entirety, applying only one state's law to all of the issues in the case. Modern approaches to choice of law require the forum court to consider separately which state's law should govern for each substantive issue if the issue would be resolved differently under the law of two or more potentially interested jurisdictions. This approach, which can allow the law of one state to govern one or more particular issues while still other issues are controlled by the law of one or more other states, is known as dépeçage.

Unproductive property rule

Under the traditional approach, if a trust asset produced little or no income upon the asset's sale, then an income beneficiary was entitled to some portion of the sale proceeds under the theory that such portion represented delayed income thereon. With the emphasis having shifted to the total return from the entire portfolio and away from individual investments, this rule is now seldom applied.

Torts and Vested-Rights Approach

Under the vested-rights approach of the Restatement (First) of Conflict of Laws, a tort case will be governed by the law of the place where the wrong was committed (i.e., lex loci delicti). This means the place where the last event necessary to make the actor liable for the tort took place (generally the place where the person or thing that is injured is situated at the time of the wrong). The place of injury will generally govern whether the plaintiff has sustained a legal injury, what conduct creates liability, the standard of care to be applied, defenses, and damages.

Contracts and Vested-Rights approach

Under the vested-rights approach of the Restatement (First) of Conflict of Laws, certain contractual issues are deemed to vest in the location where the contract was executed, while others are deemed to vest in the location where the contract was to be performed.

Real Property and vested-rights approach

Under the vested-rights approach of the Restatement (First) of Conflict of Laws, the law of the situs of the real property governs legal issues concerning the title and disposition of real property and whether any interests in the property can be gained or lost. Such issues can include the formalities required for instruments affecting the title to real property and the validity of transfers and mortgages of the property. The forum state will refer to the law of the situs state even with regard to the choice-of-law rules.

Corporations and Choice of Law

Under the vested-rights approach of the Restatement (First) of Conflict of Laws, the law of the state of incorporation governs questions regarding the existence of the corporation (creation and dissolution) and issues about its structure, the rights of shareholders, and other internal corporate affairs. The Restatement (Second) of Conflict of Laws concurs in concluding that the law of the state of incorporation decides such questions. See § II.B.3 Governmental-Interest Approach, supra, for the rules governing the governmental-interest approach.

Conspiracy - feigned agreement

When only one conspirator has the intent to agree, such as when the other conspirator is a governmental agent or pretends to go along with the crime to warn police, there is a conspiracy under the "unilateral" approach but there is no conspiracy at common law unless another participant is involved.

Medical statement made by a person other than the patient

Under this hearsay exception, the statement need not necessarily be made by the patient, so long as it is made for the purpose of medical diagnosis or treatment. The relationship between the declarant and the patient usually determines admissibility—the closer the relationship, the stronger the motive to tell the truth, and, as such, the more presumably reliable the statement. The court must assess the probative value of the statement pursuant to Rule 403, weighing that value against the risk of prejudice, confusion, or waste of time. See Weinstein's Evidence, Vol. 4 (1993), p. 803-145.

Undue Influence on testator

Undue influence is mental or physical coercion exerted by a third party on the testator with the intent to influence the testator such that he loses control of his own judgment. Circumstantial evidence, without any direct evidence, is insufficient to establish undue influence. Simply having an opportunity to exert influence or demonstrating the testator's susceptibility to being influenced (e.g., due to old age, poor health, or memory problems) does not establish that the testator's mind was overpowered. Several factors are considered in determining the extent of a beneficiary's involvement in procuring the will. Among them are the beneficiary's recommendation of an attorney and providing the attorney with instructions, the beneficiary's presence during the writing and execution of the will, and the beneficiary's securing of witnesses. Once a will is determined to have been the product of undue influence, it may be invalidated in whole or in part, as long as the overall testamentary scheme is not altered thereby. Most courts will invalidate only those portions that are infected by undue influence.

Trustee power to sell or contract

Unless otherwise provided in the trust instrument, a trustee generally has the implied power to contract, sell, lease, or transfer the trust property. If the settlor specifies that the trustee may not sell certain property, then such property may not be sold without a valid court order permitting the sale, which order will be granted only if selling is necessary to save the trust.

Trustee's liability to third parties

Unless otherwise specified in the trust instrument or in the governing contract, a trustee is personally liable on contracts entered into and for tortious acts committed while acting as trustee. If he acted within the scope of his duties, then he is entitled to indemnification from the trust.

Durable Power of Attorney

Unless the agency states an earlier termination date, the agency continues until the death of the principal. If the power of attorney specifies that it will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies), then it is a durable power of attorney. General, special, and healthcare powers of attorney can all be made durable within the language of the document.

Trust and gifts to surviving children

Unless the governing instrument provides otherwise, the general rule is that the gift is expressly limited to the transferor's surviving children, so that the surviving issue of a deceased child does not take. When an inter vivos trust specifies the beneficiaries as the settlor's "surviving children," but there is an intermediary interest in another party for a term of years, the question arises whether "surviving" refers to the life of the settlor or the expiration of the other interest, should the settlor die before such expiration. Most states construe "surviving" as referring to the time of distribution, such that only those beneficiaries who survived to the end of the intermediary interest would receive. However, the minority, common-law approach is to vest the interests of the beneficiaries at the settlor's death. Under the UPC, if a class gift is limited in favor of a class of children, then only those children alive at the time of distribution are entitled to possession of the property. However, if a child who survives the settlor but then predeceases the time of distribution has surviving issue, that issue receives the share to which the parent would have been entitled had the parent been alive at the time of distribution (i.e., a substitute gift). UPC § 2-707(b)(3).

Transferability of LLC membership

Unless the members otherwise agree, most LLC statutes provide that a member cannot transfer her LLC interest unless all members consent. The transfer of a membership interest to another person does not automatically give that person the right to participate in the management of the LLC. Instead, the transferee merely acquires the transferor's right to share in the LLC's profits and losses. ULLCA § 503. Some LLC statutes permit the articles of organization to provide standing consent for new members.

Modification of LLC Operating Agreement

Unless the operating agreement provides otherwise, the assent of all the persons then members is required for something to be considered part of the operating agreement. An agreement among fewer members might be enforceable among those members, but it would not be part of the operating agreement.

Revocability of stock subscription

Unless the subscription agreement provides otherwise, a pre-incorporation subscription is irrevocable for six months from the date of the subscription, but a revocation can happen if all subscribers agree to it. RMBCA §6.20(a).

Limited Partner withdrawal

Unless the written partnership agreement provides otherwise, a limited partner must give six months' prior written notice to each general partner before withdrawing. RULPA 603.

Fundamental change - transferee's escape from liability

Unlike in a merger, in a sale or other transfer, the transferee corporation is generally not responsible to the transferor's creditors for the liabilities of the transferor corporation, unless the transferee corporation assumes such liabilities.

Larceny by Trick - Conversion

Unlike larceny, larceny by trick requires that the property be converted. Property is converted when the defendant, in a manner so serious as to deprive the victim of the use of the property, deprives the victim of possession of the property or interferes with the property. The deprivation must be substantial enough to justify a court to order the defendant to pay the full fair market value of the property.

Warrantless Arrests

Unlike searches, police generally do not need a warrant to make a valid arrest in a public place, even if they have time to get one. U.S. v. Watson, 423 U.S. 411 (1976). The police, however, must have a warrant to arrest an individual in his own home, absent exigent circumstances or valid consent to enter the arrestee's home. Payton v. New York, 445 U.S. 573 (1980).

Court's power to dissolve corporations

Upon the petitioner's establishment of the necessary grounds, the court may dissolve the corporation. RMBCA § 14.30(a). The court has equitable powers to issue injunctions, appoint a receiver, and take other steps necessary to preserve the corporation's assets. RMBCA § 14.31. If the court orders the dissolution of the corporation, then the distribution of the corporation's assets generally adheres to that of a voluntary distribution unless equity requires otherwise.

Dissolved LP Distribution of assets

Upon winding up, the partnership's assets are distributed to the following parties in order: i) Partnership creditors, including partners who are creditors; then ii) Partners and former partners who are entitled to distributions that have accrued but not been paid; then iii) Partners for the return of their contributions; and finally iv) Partners in the proportions in which they share distributions. RULPA 804.

Canine search

Use of a trained dog to sniff for the presence of drugs is a search if it involves a physical intrusion onto constitutionally protected property. Florida v. Jardines, 569 U.S. ___, 133 S. Ct. 1409 (2013) (curtilage). In the absence of a physical intrusion, the use of drug-sniffing dogs does not violate a reasonable expectation of privacy. Illinois v. Caballes, 543 U.S. 405 (2005) (car); United States v. Place, 462 U.S. 696 (1983) (luggage in a public place).

Standing - Taxpayer

Usually, a taxpayer does not have standing to file a federal lawsuit simply because the taxpayer believes that the government has allocated funds in an improper way. However, a taxpayer does have standing to litigate whether, or how much, she owes on her tax bill. See United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013) (litigating disallowance of estate tax exemption for surviving same-sex spouse under the Defense of Marriage Act.)

Vicarious Liability vs. strict liability crimes

Vicarious liability differs from strict liability in that strict-liability crimes require a personal act on the part of the defendant (actus reus) but not mental fault (mens rea). Conversely, vicarious liability crimes do not require an actus reus, but they do retain a mens rea requirement.

Securities causes of action

Violations of 17 C.F.R. § 240.10b-5 ("Rule 10b-5") and Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p, ("Section 16(b)"), which are based on the purchase and sale of stock and other securities, are federal causes of action and must be pursued in federal court. Because each involves a federal claim, diversity of citizenship is not needed. The SEC also may enforce these provisions through civil penalties and criminal prosecution.

Voluntary Intoxication Not A Defense

Voluntary intoxication is not a defense when the intent was formed before intoxication or when the defendant becomes intoxicated for the purpose of establishing the defense of voluntary intoxication. Voluntary intoxication is not a defense to crimes involving malice, recklessness, or negligence, or for strict-liability crimes.

Voluntariness of statement under Miranda

Volunteered statements are not protected by Miranda, as they are, by definition, not the product of interrogation. A confession is involuntary only if the police coerced the defendant into making the confession. Whether a statement is voluntary or coerced is determined based on the totality of the circumstances (including facts such as the conduct of the police, the characteristics of the defendant, and the time of the statement). A claim that a confession should be excluded because it is involuntary must be decided by the trial judge as a preliminary question of fact, and not by the jury.

Warrantless entry and exigent circumstances

Warrantless entry into a home or business is presumed unlawful unless the government demonstrates both probable cause and exigent circumstances. In determining the existence of exigent circumstances, courts use the "totality of circumstances" test. As a corollary to this doctrine, police may also secure the premises for a reasonable time to enable officers to obtain a warrant when the police have reason to believe that the failure to do so could result in the destruction of evidence. Illinois v. McArthur, 531 U.S. 326 (2001). The exigent-circumstances rule does not apply when the police create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment. Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849 (2011).

Choice of Law

When a cause of action involves contacts with more than one state, the forum court must determine which state's law is to be applied to decide the issues in the case. State choice-of-law rules generally have three sources: (i) specific choice-of-law statutes, (ii) contractual choice-of-law agreements, and (iii) general choice-of-law rules governed by forum state common law. Choice-of-law issues are possible whenever a lawsuit involves a foreign element, such as a nonresident party or an event outside the forum state.

Parental consent to search

When a child lives with a parent, the parent has the authority to consent to a search of a child's room even if the child is an adult. However, a parent may lack authority to consent to the search of a locked container inside the child's room, depending on the age of the child. U.S. v. Block, 590 F.2d 535, 540 (4th Cir. 1979).

Issuance of stock generally

When a corporation sells or trades its stock to an investor, the transaction from the corporation's perspective requires the issuance of stock. The corporation may issue such stock, provided the articles of incorporation authorize the issuance. RMBCA §6.03(a).

Ultra vires actions

When a corporation that has stated a narrow business purpose in its articles of incorporation subsequently engages in activities outside that stated purpose, the corporation has engaged in an ultra vires act. When a third party enters into a transaction with the corporation that constitutes an ultra vires act for the corporation, the third party generally cannot assert that the corporation has acted outside those powers in order to escape liability.

Statement of Physical COndition

When a declarant's physical condition at a particular time is in question, a statement of the declarant's mental feeling, pain, or bodily health made at that time can be used to prove the existence of that condition but not its cause. In most states, a statement made by a patient to a doctor relating to a past condition is not admissible under this exception. Under the Federal Rules, such a statement is admissible under the hearsay exception for statements for purposes of medical diagnosis or treatment (see 4. Statement Made for Medical Diagnosis or Treatment, below).

Mens rea - purposely

When a defendant acts "purposely," his conscious objective is to engage in the conduct or to cause a certain result. MPC § 2.02(2)(a).

Criminal Transferred Intent

When a defendant acts with an intent to cause harm to one person or object and that act directly results in harm to another person or object, the defendant can be liable for the harm caused under the doctrine of transferred intent. Note that the doctrine of transferred intent applies only to "bad aim" cases and not to cases of mistaken identity. Transferred intent, also known as the unintended victim rule, is usually confined to homicide, battery, and arson. Any defenses that the defendant could assert against the intended victim (e.g., self-defense) may also transfer to the unintended victim. Note that transferred intent does not apply to attempted crimes, only completed crimes. The Model Penal Code, while not specifically recognizing the doctrine of transferred intent, does recognize liability when purposely or knowingly causing a particular result is an element of an offense. This element can be established even if the actual result is not within the purpose or contemplation of the defendant, so long as the result differs from the intended or contemplated result only insofar as (i) a different person or different property is harmed or (ii) the contemplated injury or harm would have been more serious or more extensive than the harm actually caused. MPC § 2.03.2(2).

Rule 10b-5 - defendant's liability

When a defendant has engaged in a knowing violation, she is jointly and severally liable for the damages. If a defendant's violation results from reckless behavior, then her liability is proportionally limited to the damages for which she is responsible. Securities Exchange Act Rule21D(f).

Criminal Defense - Mistake of Fact

When a defendant is factually mistaken (e.g., the defendant thinks that the victim is holding a pistol that instead is a toy gun), the defendant may generally rely on a defense if the mistake is a reasonable one. In determining the reasonableness of the mistake, the defendant's physical characteristics, experiences, and knowledge are taken into account. An unreasonable factual mistake is a defense only to a specific-intent crime.

Larceny special problems

When a defendant takes legitimate possession of an item, but he discovers another item enclosed in the larger item (the container), the issue arises as to whether the defendant had possession of the enclosed item at the time the defendant legitimately possessed the larger item. If so, there is no larceny because the defendant has not taken the property from another's possession. However, determining whether there is possession is a difficult task. Larceny may depend on whether the parties intended to transfer the container. If the intent is to transfer, then no larceny is committed because the defendant effectively takes immediate possession of both items. A few states hold that the defendant does not take possession of the enclosed property until he discovers it, at which point, if he forms the intent to keep the property, he is guilty of larceny.

Contracting Power of Appointment

When a donee is given a testamentary power of appointment, a contract to make an appointment is invalid because it would defeat the donor's purpose of having the donee exercise the power of appointment at the donor's death. On the other hand, if a donee is given a presently exercisable power of appointment, then a contract to appoint would be valid.

Class Gifts and trusts

When a future interest in a trust is in the form of a gift to a group of individuals (i.e., a class gift), the class remains open and may admit new members until (i) at least one class member is entitled to obtain possession of the gift, or (ii) the preceding interest terminates (e.g., the holder of the present life interest dies).

Class Gift Rule

When a gift is to an entire class and one member of the class dies, only the surviving class members take. However, if an anti-lapse statute applies (because the predeceased class member was related to the testator), then the issue of the predeceased member also will take. The majority of states and the UPC apply the anti-lapse statute first, before the determination of a class gift. Unif. Probate Code §2-603. The UPC extends anti-lapse to life insurance policies in which the beneficiary predeceases the policyholder. Unif. Probate Code § 2-706.

Speech by government employees

When a government employee contends that her rights under the Free Speech Clause of the First Amendment have been violated by her employer, the employee must show that she was speaking as a citizen on a matter of public concern. Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011). When a government employee is speaking pursuant to her official duties, the employee is generally not speaking as a citizen and the Free Speech Clause does not protect the employee from employer discipline. Garcetti v. Ceballos, 547 U.S. 410 (2006). In determining whether a government employee is speaking pursuant to her official duties, the critical question is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. Lane v. Franks, 573 U.S. ___, 134 S. Ct. 2369 (2014). When an employee is speaking as a citizen on a matter of public concern, the First Amendment interest of the employee must be balanced against the interest of the state, as an employer, in effective and efficient management of its internal affairs. Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Connick v. Myers, 461 U.S. 138 (1983); Borough of Duryea v. Guarnieri, supra. This approach also applies to a government employee who petitions the government for redress of a wrong pursuant to the Petition Clause of the First Amendment. Id.

Establishment Clause

When a governmental program shows preference to one religion over another, or to religion over nonreligion, strict scrutiny applies. Bd. of Educ. v. Grumet, 512 U.S. 687 (1994) (creation of special school district to benefit members of one religion invalid).

Effect of partnership merger

When a merger becomes effective, all parties to the merger other than the surviving entity cease to exist. All property and obligations of the entities that are parties to the merger become the property and obligations of the surviving entity. All proceedings against a party to the merger either may continue as if the merger had not occurred or may substitute the surviving entity into the proceeding. Any partner of a party to a merger who does not become a partner of the surviving entity is dissociated from the entity as of the date the merger takes effect. RUPA 906. A partner of the surviving entity is liable for (i) all obligations for which he was personally liable before the merger, (ii) all of the surviving entity's obligations that were incurred by a party to the merger before the merger (although those obligations must be satisfied by the entity's property), and (iii) all obligations incurred by the surviving entity after the merger takes effect, unless otherwise provided by law. RUPA 906(c).

Indemnification of a disssociated partner

When a partnership purchases a dissociated partner's interest, the partnership must generally indemnify the partner against all partnership liabilities, whether the liabilities were incurred before or after the dissociation. An exception exists for liabilities incurred by the partnership due to the dissociated partner's post-dissociation actions. RUPA 701(d).

Lack of good-faith effort to incorporate

When a person conducts business as a corporation without attempting to comply with the statutory incorporation requirements, that person is liable for any obligations incurred in the name of the nonexistent corporation. RMBCA §2.04.

Good-faith effort to incorporate

When a person makes an unsuccessful effort to comply with the incorporation requirements, that person may be able to escape personal liability under either the de facto corporation doctrine or the corporation by estoppel doctrine.

Partnership - person holding out another as partner

When a person represents that another is a partner, who is not in fact a partner, the purported partner constitutes an agent of the person making the representation. The purported partner is also an agent of any partner of an existing partnership who consents to the representation. RUPA 308(b).

Standing and Individualized Injury

When a plaintiff has been directly injured "it does not matter how many people" were also injured; when "a harm is concrete, though widely shared," there is standing. Massachusetts v. EPA, 549 U.S. 497 (2007). However, even though an injury may satisfy the injury-in-fact standard, the court may refuse to adjudicate a claim by the application of the principles of prudence. Under this prudential-standing principle, an injury that is shared by all or a large class of citizens (i.e., a generalized grievance) is not sufficiently individualized to give the plaintiff standing. Warth v. Seldin, 422 U.S. 490 (1975).

Public schools as public forums

When a public school, as a designated (limited) public forum, permits the public to use its facilities, it cannot discriminate against organizations based on its beliefs. Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (religious organizations); Widmar v. Vincent, 454 U.S. 263 (1981); Healy v. James,408 U.S. 169 (1972) (political organization). Similarly, a public school may provide funding and other benefits (e.g., free use of facilities) to student groups, but it must do so on a viewpoint-neutral basis.

Takings resulting in no economically viable use

When a regulation results in a permanent total loss of the property's economic value, a taking has occurred. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (zoning ordinance precluding owner of coastal property from erecting any permanent structure on the land was a taking); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (32-month building moratorium was not a taking). This is a per se taking.

Search warrant requirements

When a search occurs, a warrant serves to protect a person's privacy interests against unreasonable governmental intrusion. A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized. Warrantless searches are per se unreasonable unless the search satisfies one of seven exceptions to the warrant requirement.

Sentencing enhancements

When a sentence may be increased if additional facts are established, a jury must determine the existence of such facts. Enhancement of a defendant's sentence by a judge without such a determination violates the defendant's right to a jury trial. Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). This limitation on a judge's ability to impose an enhanced sentence also applies when the defendant has entered a guilty plea. Blakely v. Washington, 542 U.S. 296 (2004). However, the harmless-error test applies to determine whether a sentence enhanced in violation of a defendant's right to a jury trial must be reversed. Washington v. Recuenco, 548 U.S. 212 (2006).

Omitted Spouse Presumptions

When a spouse is omitted from a will, a rebuttable presumption is created that the omission was a mistake. The traditional view is that the presumption cannot be rebutted unless the intent to omit the spouse is apparent from the language of the will or the spouse was provided for outside of the will.

Vote dilution

When a state draws election districts for the purpose of scattering a racial or ethnic minority among several districts in order to prevent the minority from exercising its voting strength, the state's action is a violation of the Equal Protection Clause. Gomillion v. Lightfoot, 364 U.S. 339 (1960) (redrawing city boundaries to exclude African-American voters unconstitutional); Rogers v. Lodge, supra.

Replacement candidate

When a state gives a political party the right to select an interim replacement for an elected state official who was a member of that party, the party may select the replacement through an election at which only party members may vote. Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982).

Article III - Injunctive relief

When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary. Ex parte Young, 209 U.S. 123 (1908), Edelman v. Jordan, 415 U.S. 651 (1974). Note: A state also cannot invoke its sovereign immunity to prevent a lawsuit by a state agency seeking to enforce a federal right against a state official. Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011).

Due process - disciplinary suspension

When a student is suspended from public school for disciplinary reasons, due process requires that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. Goss v. Lopez, supra, at 581. However, a student whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school and the necessary notice and rudimentary hearing should follow as soon as practicable. Id., at 582-3.

Resulting trust

When a trust fails in some way or when there is an incomplete disposition of trust property, a court may create a resulting trust requiring the holder of the property to return it to the settlor or to the settlor's estate. When a testamentary trust fails, the residuary legatee succeeds to the property interest. The purpose of a resulting trust is to achieve the settlor's likely intent in attempting to create the trust. The primary aim of a resulting trust is the prevention of unjust enrichment. Resulting trusts may be imposed when there is: i) A purchase-money resulting trust (i.e., title is taken in the name of one party (the holder), but some other party supplied the consideration), which creates a rebuttable presumption of unjust enrichment of the holder, unless: a) There is a close familial relationship between the holder of the property and the purchaser; or b) The purchaser manifests an intention to make a gift or loan to the holder; ii) A failure of an express trust, either because the trust is void or unenforceable or because the beneficiary cannot be located, unless the trust provides for disposition of the trust property in cases in which the trust may fail; or iii) There is an incomplete disposition of trust assets due to an excess corpus. In the case of a purchase-money resulting trust, any valuable consideration other than money is sufficient so long as it is for the purchase of the property rather than for improvements, and the consideration is given at or before the time the trustee takes title. If the party claiming to be the beneficiary can prove by clear and convincing evidence that he supplied the consideration, then there is a rebuttable presumption that a resulting trust was created. However, the trustee may rebut that presumption by indicating that there was no intention to create a trust. Modern courts will weigh the gravity of the unjust enrichment in making determinations as to whether or not to impose a resulting trust.

Trust and implied gifts

When a trust that creates a class gift fails to specify the recipients of the gift in a contingency that actually occurs, e.g., the gift is made to "grantor's nieces and nephews if grantor dies without issue" and the grantor in fact dies with issue, some courts will infer a gift to the issue, while others will simply revert the gift to the settlor's estate.

Trustee self-dealing

When a trustee personally engages in a transaction involving the trust property, a conflict of interest arises between the trustee's duties to the beneficiaries and her own personal interest. The following are generally prohibited transactions with trust property: i) Buying or selling trust assets (even at fair market value); ii) Selling property of one trust to another trust that the trustee manages; iii) Borrowing from or making loans to the trust; iv) Using trust assets to secure a personal loan; v) Engaging in prohibited transactions with friends or relatives; or vi) Otherwise acting for personal gain through the trustee position.

Rape - without consent

When a woman consents to sexual intercourse, rape has not occurred. Consent does not exist if intercourse is procured by force or threat of harm, or when the female is unable to consent due to a drug-induced stupor or unconsciousness.

De jure corporation

When all of the statutory requirements for incorporation have been satisfied, a de jure corporation is created. Consequently, the corporation, rather than persons associated with the corporation (i.e., shareholders, directors, officers, and other employees), is liable for activities undertaken by the corporation.

Attorney-Client Privilege and corporations

When an attorney represents a corporation, some states limit the privilege to communications received by the attorney from a member of the "control group" of the corporation (employees in a position to control or take a substantial part in a decision). See, e.g., Consolidation Coal Co. v. Bucyrus-Erie Co., 432 N.E.2d 250 (Ill. 1982). However, in cases in which federal law controls, the privilege extends to communications by a non-control-group employee about matters within the employee's corporate duties made for the purpose of securing legal advice for the corporation. Upjohn Co. v. United States, 449 U.S. 383 (1981) (protecting communications by lower-level employees who were directed by their superiors to communicate with the corporation's attorney).

Rule 44(c)

When co-defendants are represented by the same attorney, Rule 44(c) of the Federal Rules of Criminal Procedure requires the court to conduct a prompt inquiry into potential conflicts of interest and advise the defendants of the right to separate representation. Failure to comply with the Rule, though, will not constitute a per se reversible error, and an appellate court will likely ask whether the end result was representation by counsel under an actual conflict.

Vicarious liability crimes by corporations

When dealing with corporations, common law held that corporations had no criminal liability because a corporation could not form the necessary mens rea. Modern statutes, on the other hand, impose vicarious liability on corporations when the offensive act is performed by an agent of the corporation acting within the scope of his employment or when the act is performed by a high-ranking corporate agent who likely represents corporate policy. Under the MPC, a corporation may be held criminally liable if (i) the corporation fails to discharge a specific duty imposed by law, (ii) the board of directors or a high-ranking agent of the corporation acting within the scope of his employment authorizes or recklessly tolerates the offensive act, or (iii) the legislative purpose statutorily imposes liability on a corporation for a specific act. The individual agent of the corporation who violated the statute may also be held criminally liable, and the corporation's conviction does not preclude conviction of the individual. MPC § 2.07.

Most-Significant-Relationship Approach - Principles

When determining which state has the most significant relationship, the forum court generally considers the "connecting facts" or contacts that link each jurisdiction to the case, as well as the seven policy principles that are set forth in the Restatement (Second) of Conflict of Laws. The seven principles are: i) The needs of the interstate or international system: This principle is designed to achieve judicial efficiency and facilitate agreement between the two competing jurisdictions involved in the case. ii) The relevant policies of the forum: The forum state must determine how its policies relate to the issues at hand for a particular case in a specific area of the law. iii) Policies of interested states: The forum state evaluates its own laws as well as those of interested states to determine which laws should apply. iv) Party expectations: The court will look to see if the parties have any justified expectations that should be protected. This principle applies only to planned transactions, such as contracts. v) Policies underlying the substantive areas of law: The court must consider how the application of a particular law in a particular substantive area will affect basic policies relating to that area of the law. vi) Certainty, predictability, and uniformity: The court will strive to achieve these goals and ultimately discourage forum shopping. vii) Ease of future application: In the interest of making the final application of law easy, the court evaluates how difficult the application of the second jurisdiction's law would be to the case at hand. The court then decides if it should be used. The list is not exclusive, and the particular factors will vary in importance according to the type of case at issue.

Court enforcement of the plea bargain

When entering into a plea bargain, the agreement is enforceable against the defendant and the prosecutor, but not against the judge. If the judge is not satisfied with the bargain, he can reject the plea. A defendant does not have a constitutional right to have his plea accepted by the court.

Return of property after taking

When governmental action constitutes a taking, the government cannot escape all liability by returning the property to its owner, but instead must pay the owner compensation for the period that the government possessed the property. First English Evangelical Church v. County of Los Angeles, 482 U.S. 304 (1987).

Statutory offenses under Double Jeopardy

When jeopardy has attached with respect to a lesser included offense prior to the occurrence of an event necessary to establish the greater offense, the defendant may be subsequently tried for the greater offense.

Intentional disclosure by attorney

When made during a federal proceeding, the intentional disclosure of privileged material operates as a waiver of the attorney-client privilege. The waiver extends to undisclosed information only in those unusual situations in which (i) the disclosed and undisclosed material concern the same subject matter and (ii) fairness requires the disclosure of related information because a party has disclosed information in a selective, misleading, and unfair manner. Fed. R. Evid. 502(a).

Subsequent Remedial Measures as evidence

When measures are taken that would have made an earlier injury or harm less likely to occur (e.g., repairing an area where a customer slipped), evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction. However, evidence of subsequent remedial measures may be admissible for other purposes, such as impeachment or—if disputed—ownership or control of the cause of the harm (e.g., a car) or the feasibility of precautionary measures. Fed. R. Evid. 407.

Cumulative voting

When more than one director is to be elected, corporations can allow shareholders to cumulate their votes and cast all those votes for only one (or more than one) of the candidates. The effect of cumulative voting is to allow minority shareholders to elect representatives to the board.

Controlling shareholder

When one shareholder—or a group of shareholders acting in concert—holds a high enough percentage of ownership in a company to enact changes at the highest level, the shareholder or group is a "controlling shareholder." Anyone controlling 50percent of a corporation's shares, plus one, is automatically a controlling shareholder. A much smaller interest can be controlling if the remaining shares are widely dispersed (as in a large, publicly traded corporation) and not actively voted. Additionally, a corporation that requires a two-thirds supermajority of shares to vote in favor of a motion can effectively grant control to a minority shareholder or block of shareholders that owns just more than one-third of the shares of the corporation. Thus, in some cases, a shareholder can essentially maintain control of a corporation with only 33.4 percent of the outstanding shares.

Takings where only portion taken

When only a portion of an owner's property is taken, the owner may also receive compensation for any diminution in value of the remaining portion that is attributable to the taking but must reduce any compensation by the value of any special and direct benefits (e.g., a highway access) conferred on the remaining portion.

Titled property designated as partnership property

When ownership of property is evidenced in a document (i.e., a title), property that is acquired in the name of the partnership is partnership property. Property may be acquired in the name of the partnership by a transfer to either (i) the partnership in its own name or (ii) one or more of the partners in their capacity as partners, provided the name of the partnership is indicated in the instrument transferring title to the property. Property is also partnership property when the property is titled in the name of one or more of the partners, provided such instrument indicates either the named person's capacity as a partner or the existence of the partnership. RUPA 204(a), (b).

Effect of attorney disclosure made in state proceeding

When privileged material is disclosed in a state proceeding and the state and federal laws are in conflict as to the effect of the disclosure, the disclosure does not operate as a waiver in a subsequent federal proceeding if the disclosure (i) would not be a waiver had it been made in a federal proceeding or (ii) is not a disclosure under the law of the state where it was made. In other words, the federal court must apply the law that is most protective of the privilege. This rule does not apply if the state court has issued an order concerning the effect of the disclosure; in such a case, the state-court order would be controlling. Fed. R. Evid. 502(c).

Liability of third parties to a trust

When property is improperly transferred as a result of a breach of trust to a third party who is not a bona fide purchaser—one who takes for value and without notice—the beneficiary or successor trustee may have that transaction set aside. If, on the other hand, the third party is a knowing participant in the breach, then he is liable as well for any losses suffered by the trust. Because only the trustee is allowed to bring a cause of action against the third party, the beneficiary is limited to bringing a suit in equity against the trustee to compel the trustee to sue the third party. In a situation in which (i) the trustee is a participant in the breach, (ii) the third party is liable in tort or contract and the trustee fails to pursue a cause of action, or (iii) there is no successor trustee, the beneficiary is given the option of directly suing the third party.

Presumptions as to partnership property

When property is not regarded as partnership property, the intent of the partners controls in determining whether the property belongs to the partnership or to the individual partners. Two statutory presumptions are applicable in ascertaining that intent. Property is presumed to be partnership property if it was purchased with partnership assets or if partnership credit is used to obtain financing. RUPA204(c). By contrast, property is rebuttably presumed to be a partner's separate property when (i) the property is acquired in the name of one or more partners, (ii) the instrument transferring title to the property does not indicate the person's capacity as a partner or the existence of a partnership, and (iii) partnership assets were not used to acquire the property. The use of property for partnership purposes is not enough to overcome this presumption. RUPA 204(d).

Trustee self-dealing presumption

When self-dealing is an issue, an irrebuttable presumption is created that the trustee breached the duty of loyalty. A trustee can employ herself as an attorney and can receive reasonable compensation, as long as the use of an attorney does not constitute a breach of trust.

Killing of bystander by someone other than a co-felon

When someone other than a co-felon is killed by a police officer or dies as a result of resistance by the victim of the felony, the felon's liability for that death will depend on whether an agency theory or proximate-cause theory is applied. Under an agency theory, the felon will not be liable for the death of a bystander caused by a felony victim or police officer because neither person is the felon's agent. Under the proximate-cause theory, liability for the bystander's death may attach to the felon because the death is a direct consequence of the felony. The same analysis is applicable when a victim of the underlying felony or a police officer is killed by someone who is not one of the felons.

Equal Protection and Congressional districts

When states establish districts for congressional elections, they must achieve nearly precise mathematical equality between the districts. This restriction is imposed on the states by Article I, Section 2, which requires members of the House to be chosen by "the People of the several States." An unexplained deviation of less than one percent may invalidate the statewide congressional district plan. Variations may be justified by the state on the basis of consistently applied, legitimate state objectives, such as respecting municipal political subdivision boundaries, creating geographic compact districts, and avoiding contests between incumbent representatives. In addition, variations based on anticipated population shifts may be acceptable when such shifts can be predicted with a high degree of accuracy, and population trends are thoroughly documented. Kirkpatrick v. Preisler, 394 U.S. 526 (1969) (variation in population of slightly less than six percent violated the "one person, one vote" rule); Karcher v. Daggett, 462 U.S. 725 (1983) (variation of slightly less than 0.7 percent violated the "one person, one vote" rule).

Voting and unpaid stock

When stock has been subscribed to but not fully paid for, the subscriber's right to vote such stock may be limited or denied.

Voting and stock transfer

When stock is sold or otherwise transferred, an issue may arise as to whether the transferor or the transferee of the stock is entitled to vote at a subsequent shareholders' meeting. Typically, the record date is fixed by the board of directors, although the date can be set by reference to the articles of incorporation or the corporate bylaws and, failing corporate guidance, by statute. The record date can be no more than 70 days prior to the meeting. Only the owner of the stock at the close of business on the record date has the right to vote the stock at the upcoming meeting. A transferee of shares after the record date who wants to vote at a scheduled shareholder meeting should obtain a proxy to vote the shares from his transferor. RMBCA § 7.07.

Shareholder's preemptive rights

When the board of directors decides to issue new shares, the rights of shareholders to purchase those shares in order to maintain their proportional ownership share in the corporation are known as "preemptive rights." Shareholders automatically had such rights at common law, but the RMBCA explicitly precludes preemptive rights unless the articles of incorporation provide otherwise. RMBCA § 6.30(a).

Third-party consent to search

When the person from whom consent is sought is not the defendant, in addition to the voluntariness of the permission, the authority of that person to consent can be an issue.

Search of jointly controlled property

When the property to be searched is under the joint control of the defendant and a third party (e.g., co-tenants of an apartment, a house jointly owned by a husband and wife), the authority of the third party to consent turns on whether the defendant is present at the time of the search.

Search of jointly controlled property when defendant present

When the property to be searched is under the joint control of the defendant and a third party, and the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search. Georgia v. Randolph, 547 U.S. 103, 114-116 (2006). When the defendant is not present, however, a third party may consent to a search even if the defendant previously was present and objected to a search at that time. Fernandez v. California, 571 U.S. ___, 134 S. Ct. 1126 (2014).

Public Safety and Miranda

When the public's safety is at risk, the police are not required to give Miranda warnings before questioning a suspect.

Conspiracy - protected by statute

When the purpose of a criminal statute is to protect a type of person (e.g., a statutory rape statute protects underage females), there is no conspiracy between the protected party and the targeted defendant.

Immigration Automobile Stops

When the purpose of the stop relates to the enforcement of immigration laws, any car may be stopped on a random basis at the border of the United States without a reasonable suspicion of wrongdoing. Almeida-Sanchez v. United States, 413 U.S. 266 (1973). When a search does not occur at the border or its functional equivalent, all cars may be stopped at a fixed checkpoint without a reasonable suspicion of violation of an immigration law, but a car may not be singled out and randomly stopped without a particularized and objective basis. United States v. Cortez, 449 U.S. 411 (1981) (holding the stop of one car proper when officers could reasonably surmise that the car was involved in criminal immigration activity); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (affirming convictions based on stops at checkpoints at which all cars were stopped).

Indigence and Sixth Amendment

When the right to counsel exists, an indigent defendant has the right to the appointment of counsel. However, this right does not entitle an indigent defendant to the appointment of counsel of his own choosing. See United States v. Gonzalez-Lopez, 548 U.S. 140, 147-148 (2006) (defendant who retains his own counsel has the right to be represented by that attorney); Wheat v. United States, 486 U.S. 153 (1988).

Trustee power to revoke

When the settlor names himself as trustee, the trust normally contains a power to revoke, which allows the settlor as trustee to revoke the trust in part or in its entirety.

Other factors for identifying partnership property

When the statutory rules discussed above do not resolve the issue of ownership, such as when the property is titled in a partner's name and it is unclear whose funds purchased the property, then various factors may be considered to ascertain the partner's intent. Such factors include the property's use, treatment of the property for tax purposes, and the source of funds used to maintain or improve the property.

Replacement or new director

When there is a vacancy on the board or an increase in the number of directors, either the shareholders or the directors may fill the vacancy. When the vacancy leaves the board without a quorum, the directors remaining can elect a replacement director by a majority vote. RMBCA §8.10(a).

Manslaughter and transferred provocation

When, because of a reasonable mistake of fact, the defendant is in error in identifying her provoker or accidentally kills the wrong person, she will be guilty of voluntary manslaughter if that would have been her crime had she killed the provoker. If, however, the defendant, in her passion, intentionally kills another person known to her to be an innocent bystander, then there will be no mitigation, and murder, rather than voluntary manslaughter, will apply.

Coercion Limitation

While, as noted, Congress, through the use of its taxing and spending powers, can encourage states to act in ways in which it cannot directly compel, Congressional encouragement may not exceed the point at which "pressure turns into compulsion." Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937); Nat'l Fed'n of Indep. Bus. v. Sebelius (The Patient Protection and Affordable Care Cases), 567 U.S. 519 (2012).

Will Contracts

Will contracts include contracts to make a will, contracts to revoke a will, and contracts to die intestate, all of which are controlled by contract law.

Presumption of innocence

While a defendant is not automatically entitled to a jury instruction apprising the jury of the presumption of innocence doctrine, the presumption is a basic tenet of a fair trial, and it may be required when necessary for a fair trial. Kentucky v. Whorton, 441 U.S. 786, 789 (1979).

Omitted Spouse

While a marriage after the execution of a will does not invalidate the will, a spouse who is not mentioned in a will is entitled to an intestate share of the testator's estate if the marriage began after the execution of the will, unless: i) A valid prenuptial agreement exists, ii) The spouse was given property outside of the will in lieu of a disposition in the testator's will; or iii) The spouse was specifically excluded from the will. Unif. Probate Code § 2-301.

Equal Protection and at-large elections

While an election in which members of a governmental unit (e.g., county council members) are elected by all voters within that unit (i.e., an at-large election) does not violate the one-person, one-vote rule, it may conflict with another constitutional provision, such as the Equal Protection Clause. Rogers v. Lodge, 458 U.S. 613 (1982) (use of countywide system to elect county board unconstitutionally diluted the voting power of African-American citizens). Note: Federal law bans at-large elections for congressional representatives in states that have more than one House member (i.e., the single-member district rule). 2 U.S.C.S. § 2c.

Search and overnight guest

While an overnight guest in a home does not have an ownership interest in the home, such a guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter. Minnesota v. Olson, 495 U.S. 91 (1990). (As to the ability of the owner or guest to consent to a search of the home, see §I.C.4.f, Consent searches, infra.)

Due process - corporal punishment

While state-sanctioned disciplinary corporal punishment by a public-school authority that results in the restraint of the student and the infliction of appreciable physical pain implicates the student's liberty interests, the student is not entitled to notice or a hearing. If the punishment is excessive, the student could seek damages in a civil action. Ingraham v. Wright, 430 U.S. 651 (1977).

Indigents and right to counsel

While the Sixth Amendment provides that an indigent defendant has a constitutional right to have counsel appointed in any criminal case, including a non-summary criminal contempt proceeding in which the defendant is sentenced to incarceration (United States v. Dixon, 509 U.S. 688 (1993)), there is no similar due process right to have counsel appointed when an indigent defendant is held in contempt in a civil proceeding and incarcerated, but procedures must be in place to ensure a fundamentally fair determination of any critical incarceration-related question (e.g., defendant's ability to comply with order for which the defendant is held in contempt). Turner v. Rogers, 564 U.S. 431 (2011) (defendant held in contempt for violation of child support order; the plaintiff, who was the custodial parent seeking enforcement of the child support order, was also not represented by counsel).

Standing and FUture injury

While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, but must be actual and imminent. When a future injury is alleged, damages cannot be obtained, but an injunction can be sought.

Most-Significant-Relationship Approach to Conflict of Law

While the vested-rights approach of the Restatement (First) of Conflict of Laws offered certainty, ease of application, and predictability of results, many courts and commentators criticized it for often resulting in the application of a jurisdiction's law that was applied only because the jurisdiction had a fortuitous or attenuated connection to the events giving rise to the case. Attempting to fix these problems, the Restatement (Second) of Conflict of Laws applies the law of the state with the most significant relationship to the issue in question. This approach is also sometimes referred to as the center-of-gravity approach or the grouping-of-contacts approach. It focuses on the policy objectives behind competing laws of different states. The forum court will: (i) isolate the precise legal issue that results in a conflict between the competing states, (ii) identify the policy objectives that each state's law seeks to achieve with respect to such issue, and (iii) determine each state's interest in view of its policy objectives to determine which state has a superior connection with the dispute. The contacts with each interested state are analyzed and their relative importance is considered, recognizing that different choices of law may be made with regard to different issues in a single case.

Commerce Clause and aggregation

With respect to an intrastate activity that does not have a direct economic impact on interstate commerce, such as growing crops for personal consumption, as long as there is a rational basis for concluding that the "total incidence" of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total. Gonzales v. Raich, 545 U.S. 1 (2005) (prohibition on personal cultivation and use of medical marijuana upheld due to effect on overall interstate trade). The practical effect of this rule is that with regard to economic activity, a substantial economic effect is presumed.

Effect of wrongful partner dissociation

Wrongful dissociation results in dissolution if a majority of the remaining partners express a will to wind up the partnership within 90 days of dissociation. RUPA 801(2). If the partnership does not dissolve and wind up, the wrongfully dissociated partner is not entitled to payment of any portion of the buyout price until the expiration of the term or completion of the undertaking, unless the partner proves to the court that earlier payment will not cause undue hardship to the business of the partnership. A deferred payment must be adequately secured and bear interest. RUPA 701(h). A partner who wrongfully dissociates is liable to the partnership and the other partners for damages caused by the dissociation. RUPA 602(c).

Piercing the corporate veil factors

i) Undercapitalization of the corporation at the time of its formation; ii) Disregard of corporate formalities; iii) Use of corporate assets as a shareholder's own assets; iv) Self-dealing with the corporation; v) Siphoning of corporate funds or stripping of corporate assets; vi) Use of the corporate form to avoid existing statutory requirements or other legal obligations; vii) A shareholder's impermissible control or domination over the corporation; and viii) Wrongful, misleading, or fraudulent dealings with a corporate creditor. Not all of the above factors need to be met for the court to pierce the corporate veil. Some courts might find that one factor is so compelling in a particular case that it will find the shareholders personally liable. The failure of a shareholder to respect the corporate entity is insufficient by itself to justify piercing the corporate veil; such failure must also adversely affect the third party's ability to recover from the corporation.

X-ray Images as evidence

X-ray images, electrocardiograms, and similar items are physical representations of things that cannot otherwise be seen (i.e., the inner workings and functionality of a human body), and, as such, unlike other reproductions, they cannot be authenticated merely by the testimony of a witness that they are accurate reproductions of the facts. To authenticate such an item, it must be shown that an accurate process was used, that the machine used was working properly, and that the operator of the machine was qualified to operate it. The chain of custody must also be established.

Character Evidence by Defendant of Criminal Defendant

A defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged. The defendant's character evidence must be pertinent to the crime charged.

Ancient Documents as evidence

A document or data compilation, including data stored electronically, is considered authentic if it is (i) at least 20 years old, (ii) in a condition unlikely to create suspicion as to its authenticity, and (iii) found in a place where it would likely be if it were authentic. Fed. R. Evid. 901(b)(8).

Conviction without direct evidence

There is no rule that requires the presentation of direct evidence in order to convict a defendant. In other words, a defendant can be convicted solely upon circumstantial evidence.

Reply letter doctrine

A document may be authenticated by evidence that it was written in response to a communication, so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.

Evidence of Criminal Victim's Character by Defendant

A criminal defendant may introduce reputation or opinion evidence of the alleged victim's character when it is relevant to the defense asserted. Fed. R. Evid. 404(a)(2)(B). (Note: The introduction of evidence of the character of an alleged victim of sexual misconduct in a criminal case, however, is subject to significant limitations (see § V.B.6. Sexual Conduct, infra).)

Duplicates as evidence

A duplicate is a counterpart produced by any process or technique that accurately reproduces the original. Fed. R. Evid. 1001(e). A duplicate is admissible to the same extent as an original unless: i) There is a genuine question as to the authenticity of the original; or ii) The circumstances make it unfair to admit the duplicate, such as may be the case when only part of the original is duplicated. Fed. R. Evid. 1003.

Juror as Witness at trial

A juror may not testify as a witness at trial in front of the members of the jury. If a juror is called to testify, the opposing party must be given the opportunity to object outside the presence of the jury. A juror may be called to testify outside the presence of the other jurors as to matters that occur during the trial, such as the bribery of a juror or a juror's failure to follow the court's instruction (e.g., discussing the case with family members). Fed. R. Evid. 606(a).

Exceptions to prohibition of Juror witnesses

A juror may testify about whether: i) Extraneous prejudicial information was brought to the jury's attention (e.g., the circulation of a newspaper article not introduced into evidence about the trial and the defendant's guilt); ii) An outside influence was improperly brought to bear on a juror (e.g., a threat on the life of a juror's spouse); or iii) A mistake was made in entering the verdict onto the verdict form. The mistake exception, item iii above, does not extend to mistakes about the consequences of the agreed-upon verdict. Fed. R. Evid. 606(b). Grand jury: The same rule applies with regard to a challenge to the validity of an indictment by a grand jury. Note also that when a juror makes a clear statement indicating that he relied on racial stereotypes or animus to convict a criminal defendant, and that the amimus was a significant motivating factor in the juror's vote to convict, this "no-indictment rule" must be set aside to allow further judicial inquiry. Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct. 855 (2017)

Lay Witness Opinion Testimony

A lay (non-expert) witness is generally not permitted to testify as to his opinion. However, lay opinions are admissible with respect to common-sense impressions such as appearance, intoxication, speed of a vehicle, or another's emotions. To be admissible, the opinion must be: i) Rationally based on the perception of the witness; and ii) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. Additionally, the opinion must not be based on scientific, technical, or specialized knowledge. Fed. R. Evid. 701.

Witness personal knowledge

A non-expert witness must have personal knowledge of a matter in order to testify about that matter. Personal knowledge may be established by the witness's own testimony as well as through other means. Fed. R. Evid. 602.

Expert Witness lack of knowledge

A party can challenge the credibility of an expert witness on cross-examination by attacking the adequacy of the expert's knowledge, both their general knowledge in their field of expertise and their specific knowledge of the facts underlying their testimony.

Telephone conversations as evidence

A party to a telephone conversation may authenticate statements made during that conversation as having been made by a particular individual by testifying that: i) The caller recognized the speaker's voice; ii) The speaker knew facts that only a particular person would know; iii) The caller dialed a number believed to be the speaker's, and the speaker identified himself upon answering; or iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone. Fed. R. Evid. 901(b)(4)-(6).

Impeachment by prior inconsistent statements

A party who is examining a witness about the witness's prior statement is not required to show it or disclose its contents to the witness, but the statement must be shown, or its contents disclosed, to an adverse party's attorney upon request. Fed. R. Evid. 613(a).

Interested Person under a Dead Man's Statute

A personal representative of the decedent or a successor in interest may also be protected under a Dead Man's Statute as an interested person.

Authentication of Physical Objects as Evidence

A physical object may be authenticated by testimony of personal knowledge of the object. Fed. R. Evid. 901(b)(1). A physical object may be authenticated by testimony of its distinctive characteristics. Fed. R. Evid. 901(b)(4). Authentication by chain of custody must be used with respect to a physical object that could easily be tampered with or confused with a similar item, such as a blood sample. The witness testifying must account for the whereabouts of the item from the time it was obtained up until its introduction at the trial.

Public records as evidence

A public record may be authenticated by evidence that the document was recorded or filed in a public office as authorized by law or that the document is from the office where items of that kind are kept. Fed. R. Evid. 901(b)(7).

Voice Identification of evidence

A voice can be identified by any person who has heard the voice at any time (including one made familiar solely for the purposes of litigation, in contrast to the rule for handwriting verification). It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording. Fed. R. Evid. 901(b)(5).

Witness Impeachment

A witness may be impeached by calling into question her credibility. Typically, a witness's testimony is challenged based on her character for untruthfulness, bias, ability to perceive or testify accurately, or prior statement that contradicts the witness's testimony at trial. Impeachment evidence may be presented through the witness's own testimony, by the testimony of another witness, or by other extrinsic evidence that contradicts the witness's testimony.

Impeachment by contradictory evidence

A witness may be impeached by evidence that contradicts the witness's testimony. Impeachment may be by extrinsic evidence as well as by cross-examination.

Impeachment by sensory competence

A witness may be impeached by showing a deficiency in her testimonial capacities to perceive, recall, or relate information. This can be achieved by demonstrating that the witness is physically or mentally impaired, or through evidence of outside interference with the witness's abilities, such as thunder impeding the ability to hear or darkness impeding the ability to see.

Present Recollection Refreshed

A witness may examine any item (e.g., writing, photograph) to "refresh" the witness's present recollection. The witness's testimony must be based on the witness's refreshed recollection, not on the item itself (e.g., the witness cannot read from the refreshing document).

Witness oath or affirmation

A witness must give an oath or affirmation to testify truthfully. The oath or affirmation must be in a form designed to impress that duty on the witness's conscience. Fed. R. Evid. 603. An interpreter must give an oath or affirmation to make a true translation. Fed. R. Evid. 604.

Impeachment with criminal conviction generally

A witness's character for truthfulness may be impeached with evidence that the witness has been convicted of a crime, subject to the limitations discussed below. It does not matter whether the conviction is for a state or federal crime. Fed. R. Evid. 609.

When character evidence "opens the door"

Although the prosecution cannot introduce evidence of the defendant's bad character, the defendant makes his character an issue in the case if he offers evidence of his good character. When the defendant "opens the door," the prosecution is free to rebut the defendant's claims by attacking the defendant's character. Fed. R. Evid. 404(a)(2)(A). Defendant as witness: The defendant does not "open the door" to character evidence merely by taking the stand, but as a witness, the defendant is subject to impeachment. In addition, the defendant "opens the door" for the prosecution to introduce evidence of his bad character by introducing evidence of the victim's bad character. The prosecution's evidence regarding the defendant must relate to the same character trait (e.g., violence) that the defendant's evidence about the victim did. Fed. R. Evid. 404(a)(2)(A).

Expert Witness and disclosure

An expert may state an opinion and give the reasons for it without first testifying as to the underlying facts or data, unless the court orders otherwise. Another party, when cross-examining the expert, may, of course, require the expert to disclose those facts or data. Fed. R. Evid. 705.

Handwriting Verification

An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine in order to determine the authenticity of the writing in question. Fed. R. Evid. 901(b)(3). This method may also be used for authenticating other items, such as fingerprints, cloth fibers, and hair. A lay witness with personal knowledge of the claimed author's handwriting may testify as to whether the document is in that person's handwriting. The lay witness must not have become familiar with the handwriting for the purposes of the current litigation. Fed. R. Evid. 901(b)(2).

Waiver of a dead man's statute

An interested person or protected party may waive the protection afforded by a Dead Man's Statute in several ways, including (i) failing to object to the introduction of testimony by a disqualified witness or (ii) introducing evidence of a conversation or transaction to which the statute applies.

"Original" document as evidence

An original of a writing or recording includes any counterpart intended to have the same effect as the original by the person who executed or issued it. If the information is stored electronically, any legible printout (or other output readable by sight) that reflects the information accurately is an original. An original of a photograph includes the negative and any print made from it. Fed. R. Evid. 1001(d).

Disqualified Witnesses under a dead man's statute

Any person directly affected financially by the outcome of the case may be disqualified as a witness under a Dead Man's Statute. A predecessor in interest to the party may be disqualified in order to prevent circumvention of the statute by transference of property to a relative or friend.

General Considerations of Relevance

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision. Fed. R. Evid. 402. Evidence is relevant if: i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and ii) The fact is of consequence in determining the action (i.e., material). Irrelevant evidence is generally inadmissible. Fed. R. Evid. 401.

Dead Man's Statutes generally

At common law, a party with a financial interest in the outcome could not testify in a civil case about a communication or transaction with a person whose estate was party to the case and the testimony was adverse to the estate, unless there was a waiver. Dead Man's Statutes do not apply in criminal cases. The Federal Rules do not include such a restriction, but most jurisdictions have adopted such "Dead Man's Statutes," which may be applicable in federal cases when state law applies (i.e., diversity cases).

Impeachment by Bias

Because a witness may be influenced by his relationship to a party (e.g., employment), his interest in testifying (e.g., avoidance of prosecution), or his interest in the outcome of the case (e.g., receipt of an inheritance), a witness's bias or interest is always relevant to the credibility of his testimony, and consequently, a witness may be impeached on that ground. Although the Federal Rules do not expressly require that a party ask the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts require that such a foundation be laid before extrinsic evidence of bias can be introduced.

Impeachment with arrest

Because an arrest for misconduct is not itself misconduct, a witness may not be cross-examined about having been arrested solely for the purpose of impeaching the witness's character for truthfulness; however, the witness may be cross-examined about the underlying conduct that lead to the arrest. See Michelson v. United States, 335 U.S. 469 (1948).

Expert Witness subject matter

Before an expert witness may testify, the court must first determine that the subject matter of the witness's testimony: i) Is scientific, technical, or other specialized knowledge, which focuses on the reliability of the testimony; and ii) Will help the trier of fact understand the evidence or determine a fact in issue, which focuses on the relevance of the testimony.

Character Evidence Impeachment

Character evidence is admissible for impeachment purposes. Character evidence about the witness may be introduced to show that the witness is not a person whose testimony should be believed. In such instances, the witness's character for untruthfulness is relevant. When permitted, the witness's testimony may be supported by testimony as to the witness's character for truthfulness. Fed. R. Evid. 404(a)(3). See § III.B. Impeachment, infra.

Admissible Character Evidence in Civil Claim

Character evidence is admissible, however, when character is an essential element of a claim or defense, rather than a means of proving a person's conduct. Character is most commonly an essential element in defamation (character of the plaintiff), negligent hiring or negligent entrustment (character of the person hired or entrusted), and child-custody cases (character of the parent or guardian). Fed. R. Evid. 404(b); 405.

Character Evidence generally

Character evidence, which is generalized information about a person's behavior—such as information that the defendant is a criminal, a bad parent, or an inattentive driver—is generally inadmissible.

Conclusive Presumptions

Conclusive (or irrebuttable) presumptions are treated as rules of substantive law and may not be challenged by contrary evidence, no matter how strong the proof. One example is the presumption in some states that a child under the age of four lacks the ability to form the intent necessary to commit an intentional tort; no evidence to the contrary is permitted to disprove this assumption.

Direct evidence

Direct evidence is identical to the factual proposition that it is offered to prove. An eyewitness who testifies that she saw the defendant shoot the victim dead is an example of direct evidence that the defendant committed a homicide.

Documentary evidence generally

Documentary evidence is commonly authenticated by stipulation, testimony of an eyewitness, or handwriting verification.

Juror as witness after trial

During an inquiry into the validity of a verdict, a juror generally may not testify about: i) Any statement made or incident that occurred during the course of the jury's deliberations (e.g., refusal to apply the court's instructions); ii) The effect of anything upon that juror's, or any other juror's, vote; or iii) Any juror's mental processes concerning the verdict. Fed. R. Evid. 606(b).

Impeachment with juvenile adjudications

Evidence of a juvenile adjudication is not admissible to impeach a defendant. When the witness is not the defendant, evidence of a juvenile adjudication can be used to impeach the witness's character for truthfulness only if: i) It is offered in a criminal case; ii) An adult's conviction for that offense would be admissible to attack the adult's credibility; and iii) Admitting the evidence is necessary to fairly determine guilt or innocence. Fed. R. Evid. 609(d).

Habit Evidence

Evidence of a person's habit or an organization's routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. A habit is a person's particular routine reaction to a specific set of circumstances. Habit evidence may be admitted without corroboration and without an eyewitness. Fed. R. Evid. 406.

Impeachment by Religious beliefs

Evidence of a witness's religious opinions or beliefs is not admissible to attack or support a witness's credibility. Fed. R. Evid. 610. However, such evidence may be admissible to show bias or interest, such as when the witness is affiliated with a church that is a party to a lawsuit.

Impeaching with specific instances of conduct

Generally, a specific instance of conduct (e.g., lying on a job application) is not admissible to attack or support the witness's character for truthfulness. However, on cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness or untruthfulness of (i) the witness or (ii) another witness about whose character the witness being cross-examined has testified. Fed. R. Evid. 608(b).

Expert Witness and ultimate issue

Generally, an expert's opinion may be admissible even though the opinion embraces an ultimate issue in the case (including the defendant's state of mind). However, an expert may not state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense. That determination lies in the province of the trier of fact. Fed. R. Evid. 704.

Witness Competence generally

Generally, every person is presumed to be competent to be a witness. Common-law prohibitions on a witness's ability to testify because of a lack of religious belief or conviction of a crime are inapplicable in proceedings governed by the Federal Rules. Questions of mental competence go to the weight rather than the admissibility of the testimony. However, in cases that turn on state law, such as diversity cases, a witness's competency is determined by state law. Fed. R. Evid. 601.

Introduction of specific acts as character evidence in criminal cases

Generally, when character evidence is admissible as evidence in a criminal case (e.g., evidence of good character introduced by the defendant), specific instances of a person's conduct are not admissible. Character must be proved by either reputation or opinion testimony. Fed. R. Evid. 405(a). Non-propensity use: When a defendant's bad act is not used to show the defendant's criminal propensity but for another purpose (e.g., motive, identity), such instance of conduct may be admissible for that purpose. Essential element of the crime charged: When character or a character trait is an essential element of the crime charged, the defendant may introduce relevant specific acts inconsistent with the crime. Fed. R. Evid. 405(b).

Impeachment with convictions more than ten years old

If more than 10 years have elapsed since the conviction (or release from confinement, whichever is later), then evidence of the conviction is admissible only if: i) The probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and ii) The proponent gives an adverse party reasonable written notice of the intent to use such evidence so that the adverse party has a fair opportunity to contest the use of such evidence. Fed. R. Evid. 609(b).

Character Evidence in Civil Cases to Prove conforming conduct

In a civil case, evidence of a person's character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. Fed. R. Evid. 404(a)(1). Evidence concerning past sexual assault or child molestation by a defendant in a case in which the claim for relief is based on the defendant's sexual misconduct is admissible. This includes evidence of specific acts. Fed. R. Evid. 415. Evidence concerning the past sexual behavior of a victim of sexual misconduct (e.g., rape) is admissible in limited circumstances (see § V.B.6. Sexual Conduct, infra).

Failure to produce writing for present recollection refreshed

In a criminal case, if the prosecution refuses to comply with a court order to produce or deliver a writing, the court must strike the witness's testimony, or may, when justice requires, declare a mistrial. In other circumstances, the court is free to issue any appropriate order. Fed. R. Evid. 612(c).

Character Evidence and specific acts

In addition to general evidence of a person's character (or character trait), evidence of a specific act is not admissible to prove a person's character in order to show that the person acted in accordance with that character on a particular occasion. Fed. R. Evid. 404(b)(1). With regard to a defendant, although a defendant's crimes or other wrongful acts are not admissible to show his criminal propensity in order to prove that he committed the crime for which he is charged, such bad acts are admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b)(2).

Destruction of Evidence

In general, the intentional destruction of evidence relevant to a case raises a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence. To be entitled to such an inference, the alleged victim of the destruction of the evidence must establish that (i) the destruction was intentional, (ii) the destroyed evidence was relevant to the issue about which the party seeks such inference, and (iii) the alleged victim acted with due diligence as to the destroyed evidence. The presumption that arises from the destruction of evidence is rebuttable.

Character Evidence by Prosecution of Criminal Defendant

In general, the same rule that applies in a civil action applies to the prosecution in a criminal case. The prosecution is not permitted to introduce evidence of a defendant's bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question. Fed. R. Evid. 404(a)(1).

Qualified Expert Witness

Once the testimony is determined to be reliable and relevant, an expert witness may testify as to her opinion, provided: i) The witness is qualified as an expert by knowledge, skill, experience, training, or education; ii) The testimony is based on sufficient facts or data; iii) The testimony is the product of reliable principles and methods (i.e., the factual data, principles, and methods used as a basis for the testimony are of the type reasonably relied on by experts in the field, although the data need not be admissible itself); and iv) The witness applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702. The expert must also possess a reasonable degree of certainty in her opinion, which may be expressed using language such as "probably." United States v. Mornan, 413 F.3d 372 (3d Cir. 2005); see also, Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).

Oral statements and authentication generally

Oral statements may need to be authenticated as to the identity of the speaker in cases in which that identity is important (e.g., an opposing party's statement).

Methods of Proving Character

Proof of character, whether good or bad, offered by a party, whether the defendant or the prosecution, must be in the form of reputation testimony or opinion testimony. Reputation evidence is defined as a defendant's reputation in the community. "Community" includes people with whom the defendant engages on a regular basis. Fed. R. Evid. 405(a). For use of specific instances of conduct, see § II.C.2. Introduction of Specific Acts as Character Evidence, infra.

Exclusion of Relevant Evidence

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. This exclusion is often denominated by the applicable rule; that is, it is referred to as a "Rule 403" exclusion. Fed. R. Evid. 403. Matter of degree: Evidence may be admissible even if the danger of prejudice or other factors outweigh the probative value, so long as the danger does not do so substantially.

Impeachment with Crimes not involving dishonesty

Subject to the 10-year restriction (see below), a conviction for a crime not involving fraud or dishonesty is admissible to impeach a witness only if the crime is punishable by death or imprisonment for more than one year (typically, a felony). Fed. R. Evid. 609(a)(1). For witnesses other than a criminal defendant, such evidence generally must be admitted. The court does have the discretion, however, to exclude the evidence when the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect (i.e., the Rule 403 standard).

Impeachment with crimes involving dishonesty

Subject to the 10-year restriction (see below), any witness may be impeached with evidence that he has been convicted of any crime—felony or misdemeanor—involving dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof (or admission) of an act of dishonesty or false statement, such as perjury, fraud, embezzlement, or false pretense. Crimes of violence, such as murder, assault, and rape, are not crimes involving dishonesty or false statement, even though the perpetrator acted deceitfully in committing the crime of violence. Fed. R . Evid. 609(a)(2).

Contents of document at issue

The contents of a document are at issue when: i) The document is used as proof of the happening of an event, such as with a photograph of a bank robbery; ii) The document has a legal effect, such as with a contract or a will; or iii) The witness is testifying based on facts learned from the writing (as opposed to personal knowledge), such as with an x-ray image. Fed. R. Evid. 1002, Notes of Advisory Committee.

Copies of public records as evidence

The contents of a public record (i.e., an official record or a document recorded or filed in a public office as authorized by law) may be, and generally are, proved by a certified copy rather than by the original record. Alternatively, a public record may be proved by a copy of the record plus the testimony of a person who has compared the copy with the original. If a certified or compared copy cannot be obtained by reasonable diligence, the contents may be proved by other evidence. Fed. R. Evid. 1005.

Court-appointed expert witness

The court may appoint an expert witness and must inform the expert, either orally or in writing, of the expert's duties. Such a witness must advise each party of any findings. Each party may depose the witness, call the witness to testify, and cross-examine the witness. The court may authorize disclosure to the jury that the court appointed the expert. In a criminal case, the expert is paid by funds provided by law; in most civil cases, the expert's compensation is paid by the parties. Fed. R. Evid. 706.

Bolstering Witness Character

The credibility of a witness may not be bolstered. Evidence of the truthful character of the witness is admissible only after the witness's character for truthfulness has been attacked. Evidence that impeaches the witness but does not specifically attack the witness's character for truthfulness, such as testimony that the witness is biased, does not constitute an attack. As with evidence regarding a witness's character for untruthfulness, evidence as to a witness's character for truthfulness is generally admissible only in the form of reputation or opinion testimony. Fed. R. Evid. 608(a).

Expert Witness basis of opinion

The expert's opinion may be based on facts and data that the expert has personally observed or about which the expert has been made aware. When such facts and data are not admissible, the opinion itself may nevertheless be admissible if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject. If such facts are inadmissible, the proponent nevertheless may disclose them to the jury if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Fed. R. Evid. 703.

Self-authenticating Documents

The following items of evidence are self-authenticating—they do not require extrinsic evidence (i.e., evidence outside the document) of authenticity in order to be admitted: i) Public documents bearing a governmental seal and a signature of an authorized governmental official or that are not sealed but are signed by an authorized governmental official and certified by another authorized governmental official; ii) Certified copies of public records; iii) Official publications issued by a public authority; iv) Newspapers and periodicals; v) Trade inscriptions (e.g., labels affixed in the course of business that indicate ownership); vi) Notarized (acknowledged) documents; vii) Commercial paper (including the signature thereon, and related documents); viii) Any document, signature, or other item declared by federal statute to be authentic; and ix) Records of a regularly conducted activity (e.g., a business) certified by a custodian of the records. Although a proponent of a self-authenticating document generally is not required to give an adverse party advance notice of the intent to introduce the document, the proponent of business records (item ix, above) must give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge them. Fed. R. Evid. 902.

Limitations on impeachment with specific instances

The judge may refuse to allow such questioning of a witness under either Federal Rule 403 (the probative value is substantially outweighed by the danger of unfair prejudice) or Federal Rule 611 (protection of the witness from harassment or undue embarrassment). In addition, the lawyer who examines the witness must have a good-faith basis for believing that the misconduct occurred before asking the witness about it. United States v. Davenport, 753 F.2d 1460 (9th Cir. 1985).

Exceptions to the opportunity to explain prior inconsistent statements

The opportunity to explain or deny a prior inconsistent statement does not apply when the statement (i) impeaches a hearsay declarant (see § 7. Impeachment of a Hearsay Declarant, below) or (ii) qualifies as an opposing party's statement under Rule 801(d)(2) (see §VI.B.2., Opposing Party's Statement, infra). Fed. R. Evid. 806, 613(b).

Original Document unavailable as evidence

The original is not required, and other evidence of its contents is admissible if: i) All of the originals are lost or destroyed, and not by the proponent acting in bad faith; ii) The original cannot be obtained by any available judicial process; iii) The party against whom the original would be offered (a) had control of the original, (b) was at that time put on notice that the original would be the subject of proof at the trial or hearing, and (c) failed to produce it at the trial or hearing; or iv) The writing, recording, or photograph is not closely related to a controlling issue (i.e., it is a collateral matter). In such cases, once the party has accounted for the absence of an original, the party may prove the contents of the writing, recording, or photograph by other means. Fed. R. Evid. 1004.

Judge as witness

The presiding judge is absolutely barred from testifying as a witness in the trial. A party is not required to object in order to preserve the issue. Fed. R. Evid. 605.

Protected Parties of a Dead Man's Statute

The rationale of a Dead Man's Statute is to protect a decedent's estate from parties with a financial interest in the estate. Therefore, protected parties generally include an heir, a legatee, a devisee, an executor, or an administrator of an estate.

Attesting witness and authentication of documents

The testimony of a witness who attests or subscribes to a document generally is not required to authenticate a document. However, such testimony may be required by state law, such as to authenticate a will. Fed. R. Evid. 903.

Relevancy vs. Sufficiency

To be relevant, evidence need not, by itself, establish an element that a party must prove (e.g., the death of an individual in a homicide prosecution) or serve to refute such an element (e.g., a defendant's lack of a duty in a negligence action). The test of sufficiency of a party's evidence focuses on all evidence submitted by a party and admitted by the court. By contrast, under the test of relevancy, evidence is admissible even if it is only a single brick that is part of a wall of evidence establishing a party's position. Fed. R. Evid. 401, Notes of Advisory Committee, referring to Professor McCormick's famous statement, "A brick is not a wall."

Admissibility by laying a foundation

Various types of evidence are admissible subject to the existence of a necessary predicate (i.e., a foundation), such as the authentication of tangible evidence. The failure of the proponent of the evidence to establish that foundation may be challenged by an objection for lack of proper foundation.

Cross-examination of character witness with specific acts

When a character witness is cross-examined, the court may allow a party to inquire into specific acts committed by the person about whom the witness is testifying. Fed. R. Evid. 405(a). Rule 403: Keep in mind that evidence of a bad act that is otherwise admissible is especially subject to challenge under Federal Rule 403, which permits the court to exclude evidence when its probative value is substantially outweighed by the danger of unfair prejudice, etc.

Curative Admission

When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Known as a curative admission, such evidence can admitted at the court's discretion when necessary to remove unfair prejudice. The failure of a party to object to the admission of the initial evidence is one factor to be considered in determining whether the party was unfairly prejudiced by it. Curative admissions are generally used when a motion to strike or curative jury instruction would not suffice. Nguyen v. Sw. Leasing & Rental, Inc., 282 F.3d 1061 (9th Cir. 2002); United States v. Hall, 653 F.2d 1002 (5th Cir. 1981); Crawford v. United States, 198 F.2d 976 (D.C. Cir. 1952).

Advance Notice of Specific Acts Character Evidence

When a criminal defendant requests, the prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. Such notice must generally be given before trial, but it can be given during trial when the court, for good cause, excuses the lack of pretrial notice. Fed. R. Evid. 404(b)(2).

Impeachment of a hearsay declarant

When a hearsay statement is admitted into evidence, the credibility of the declarant may be attacked (and, if attacked, supported) by any evidence that would be admissible if the declarant had testified as a witness. The declarant need not be given the opportunity to explain or deny any inconsistent statement or conduct, whether such statement or conduct occurred before or after the hearsay statement. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, then the party is entitled to examine the declarant on the statement as if under cross-examination. Fed. R. Evid. 806. Similar impeachment treatment is accorded a nonhearsay statement made by a co-conspirator, agent, or authorized spokesperson for an opposing party that has been admitted into evidence.

Introduction of specific acts as character evidence in civil cases

When character evidence is admissible as evidence in a civil case (i.e., evidence that is an essential element of a claim or defense), it may be proved by specific instances of a person's conduct as well as either by testimony about the person's reputation or by testimony in the form of an opinion. Fed. R. Evid. 405(b).

Adverse party's rights in present recollection refreshed

When the item used to refresh a witness's recollection is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence. If the producing party claims that the document contains unrelated matter, the court may examine the document in camera and delete any unrelated portion before ordering that the rest be delivered to the adverse party. The adverse party may object to the deletion, in which case the deleted portion must be preserved in the record. Fed. R. Evid. 612(b).

Relevance Dependent on Existence of Fact

When the relevance of evidence depends upon whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof is introduced later. Fed. R. Evid. 104(b). In making its determination that sufficient evidence has been introduced, the court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence; the court itself is not required to find that the conditional fact exists by a preponderance of the evidence. Huddleston v. United States, 485 U.S. 681 (1988).

Impeaching a criminal defendant with crimes not involving dishonesty