bar_prep_copy_20190711104745 Flashcards
1
Q
What types of discipline for breaking rules?
A
Private or public reprimand/censorSuspension for finite periodDisbarment
2
Q
Requirements for admission to bar?
A
Rational: law school, oathIrrational: citizenship or state residencyRequirements for you to apply: duty to fully cooperate, truth and full disclosure
3
Q
What is your duty when you know of violation?
A
Actual personal knowledgeReport what you know UNLESS protected as confidenceAvailable to testifyDuty to report is 24/7 worldwide duty
4
Q
Can duty to report be trumped by another duty?
A
Yes. Duty of confidentiality OR membership in approved lawyer assistance program
5
Q
When is multi-jurisdictional practice allowed?
A
General rule is can’t practice where not admitted.Temporarily permissible when: with local counsel, special permission, mediation or arbitration, anything “reasonably related” yo home practice Permanently permissible as: in house or federal government
6
Q
When is supervisor responsible?
A
Knew of misconduct at time when consequences could have been mitigated AND lawyer fails to take remedial action.OrViolation raises substantial question to supervisor honesty or character/fitness to practice law AND you were told to do it.
7
Q
Remember subordinate is not responsible when…
A
Told to do it AND arguable that you thought it was ok.
8
Q
These activities require a law license
A
Appearance in judicial proceeding/depositionsNegotiate settlementsDrafting documents that effect substantial legal rights
9
Q
These activities do not require a law license
A
InterviewFilling in formsWriting legal memos
10
Q
Fee division with non-lawyer
A
General rule is fee division is not allowed with non-lawyer.Exceptions:Heirs of deceased attorneyEmployees- salaries, pension, bonus
11
Q
Law firm and partnerships
A
Only lawyers can be partners in business that involves practice of law. Except s/hNo implication of partnershipYou can list dual professions, but solicit rules apply like lawyer, and attorney/client privilege does not apply
12
Q
Contractual restrictions on practice
A
Generally not allowed, except retirement or withdrawing from firm
13
Q
General rule for accepting or rejecting clients
A
Generally, lawyers have freedom to reject cases.Exceptions: Defenseless or oppressed (should)Pro bono (should, also fulfill pro bono in other ways)Appointments (must accept unless GOOD CAUSE)
14
Q
When does lawyer have duty to reject cases?
A
Physical or mental inabilityConflict of interstStrong feelings or biasFrivolous claim or frivolous motionIncompetenceExceptions to duty to reject, take ALE.AssociationLearn it in timeEmergency
15
Q
What decisions belong to client?
A
Sue, settle, testify, please, jury or bench, appeal
16
Q
What decisions belong to lawyer?
A
Procedural and tactical decisions, to file, depositions, discovery, continuances
17
Q
Within the bounds of the law
A
Means e honest and truthful, subject to discipline for knowingly making a false statement of fact/law to court or failing to correct previously made false statement of material fact/law
18
Q
When can lawyer withdraw - terminate AC privilege?
A
Withdraw is judge’s decision, depending on stage of matter.Mandatory withdraw (“must see withdraw”):Duty to reject situationsClient fraud and refusal to rectify fraudClient insists on violation of law/ethical provisionClient has begun new illegal course of actionPermissive withdraw (lawyer may leave):Any reason that will not harm the clientIf client consentsIn one of these conditions: client persis in criminal or fraudulent conduct, client has used attorneys services to commit past crime or fraud, client objective is imprudent, client breaks promise to lawyer to pay the fee, unreasonable financial hardship on attorney practice, client will not cooperate.
19
Q
Client may not abandon client, must a lid material adverse effect on client by…
A
Dissuade clientRequest permission to withdrawDo as instructedIf permitted to withdraw give clien reasonable notice to get new lawyer
20
Q
Client lawyer contracts
A
Lawyer can limit representation through k
21
Q
Quick advice programs
A
Conflict of interst ruled are relaxed, bc lawyer does not have time to run conflict checkActual knowledge can be inferredRules change if lawyer actually hired.
22
Q
When shall fee arrangement be determined?
A
Arrangement (which includes scope of representation, basis or rate of fee, and expenses for which client will be responsible) shall be communicated to client BEFORE representation starts.
23
Q
Factors in setting reasonable fee.
A
Time and laborDifficulty and novelty of questionsExperience, reputationRelationshipsExclusionsFixed or contingentFees customarily charged
24
Q
Contingent fee agreements, when are they allowed?
A
Must be reasonable, signed by client (watch out for making promise - then breaking)Must not use in criminal case (no incentive fee AND no % of publication rights based upon representation - But client can take interest in book unrelated to representation watch for undue influence.)*Mustnot use domestic relations case
25
What explanations required for contingency fees?
Must be explained - in writing, signed by client - be clear: before you take the case AND after the case is concluded (settlement letter)
26
Referral fees are unethical except when you meet all of the following...
Attorneys work togetherWith clients written informed consent that discloses the share each lawyer will getPaid proportionally to work done, and,One reasonable fee in total.
27
Reciprocal referral agreement are allowed with the following restrictions.
Not exclusive rangmenReferred client must be toldReferral agreement must not interfere with lawyers professional judgmentAgreement should not be of indefinite duration.
28
Rules when lawyer is using or selling practice of law
Must sell entire practiceSeller must exercise competence in identify a buyer who is qualified to undertake representationWritten notice must be given to sellers clientsSeller must cease practice of lawPurchaser must take all clients and matters
29
AC privilege v. Confidentiality
Privilege = protects confidential communications, compelled disclosures, governs disclosure of info,Protects confidential communications with prospective clients.Confidentiality = covers the same AND any other info obtained by attorney relating to representation regardless of source, voluntary revelation, disclosure and use
30
Work product doctrine
Material prepared by a lawyer for litigation is immune from discovery UNLESSother side shows substantial need, and, Inability to gather material without nude hardship.
31
Client authorized disclosure
Express authorization requires informed consent (client agrees, lawyer sufficiently explains)There is some I plied authorization, like sharing w/ paralegal.
32
Exceptions to privilege
Waived by clientClient seeks attorney service to assist in FUTURE CRIME/FRAUDcommunication relevant to issue of breached AC relationshipCivil cases btwn parties who were formerly joint clients
33
Exceptions to confidentiality (WIIPPOR)
Wavied by clientInformed consentImplied authority to disclose to further the representationPrevent reasonably certain death or substantial bodily harm in futurePrevent substantial financial harm/fraudObtain legal or ethical advice for lawyerRequired by law or court order
34
Disclosure of past crimes.
Not allowed
35
Death of party and confidentiality
Death of party does not end your obligations
36
General rule for conflict of interest
Generally lawyer cannot represent adverse interests of CLIENT OR PROSPECTIVE CLIENT, but conflict can be cured in some instances if: lawyer explains risks AND client agrees in writing
37
Conflict of interest and lawyers personal interest
Rule or mutationNo sexual relationships unless preexisitingNo loans to clients in connection with pending litigation
38
Lawyers as witness?
Lawyer cannot be necessary witness for clientExceptions:Uncontested or ministerial matterLegal fee matterIf substantial hardship to client otherwise
39
General rule with Lawyer acquiring interest in litigation
Lawyer annot acquire interest in litigationExceptionsContingent feesSecurity liens
40
Screening of disqualifying lawyer
Lawyer conflict of interest will not be muted to firm... If arises out of prior association with her prior form provided she is Timmy screened
41
General rule with entering into business with clients
Lawyer can't enter into a business deal with client.Exceptions:Ordinary transactionsAs long as terms are fairExceptions require writing: full disclosure of terms, advised to get individual legal counsel, informed consent and signed by client
42
Rules with conflict of interest
Lawyer have conflicting interests with prospective or current clients and former clients.This requires:No interests adverse to clientsNo multiple clients where "potential conflict (unless; reasonable belief of no adverse affect AND client gives written informed consent
43
Representing two clients and aggregate settlement claims
Lawyer shall not make ASC without,Informed consent in writing from each client after full review of entire settlement.Full review includes:Clients come to agreement among themselves how to share aggregate sumDisclosure to all the terms (including total amount to be paid or received, existence and nature of all claims defenses and pleas involved in settlement, details of other client participation, how lawyers fees will be paid)
44
Conflict of interest and corporate representation
Lawyer represents the corporation/entity, not individual officer or director.If layer knows of action that violates duty to organization AND violation likely to cause substantial injury, lawyer MUST proceed as reasonable to protect interests of company.*must report violation to higher authority*may report to outside organization as necessary to prevent substantial injury
45
Security violations
Duty of security lawyers to report up the chain and if no appropriate response must report to board of directors and may report to SEC
46
Conflict of interest and influence of third party persons
Lawyer may be paid by third party, but requires WIC from client AND client confidences must be kept
47
Imputed disqualification
Lawyers related as parent, chld, sibling or spouse shall not represent adverse parties, unless full informed consent, but no rule of imputation.
48
Lawyer service as arbitrator, mediator or judge
Generally lawyer that transitions from public to private practice cannot take matters where previously acted or had substantial responsibilityExceptions: drafting laws, compiling statistics, drafting leal opinions.If lawyer involved in following situations, another lawyer in firm can take matter if Orr lawyer is timely screened: finding of guilt as judge, drafting contract,representing government.Elements of screen:Written disclosure to government, no fee to screened attorney, no working on or discussing case or access to files by screened attorney.
49
Competence is a two pronged duty
Professional responsibility and malpractice.
50
What cause of actions allow recovery for civil liability?
TortsContractsFiduciary relationships
51
Successful claim for civil liability requires
Money lossCausation*but for what the lawyer did, client would have won case.Purpose of civil malpractice claim is compensation.
52
Standard of care for civil liability
General practitioner, lawyer shall provide "competent representation" to a client which requires legal knowledge, skill and preparation. ORDINARY STANDARD OF REASONABLE CARE.SPECIALISTS. Higher standard of care for their speciality
53
Maintaining competence for professional responsibility
Purpose is punishment.Doesn't require money loss or causation.
54
Acceptance of employment
Lawyers presumed to be GENERALISTS and COMPETENT.
55
Exercise of diligence and care.
Reasonably consult with clientKeep client reasonably informedPromptly comply with reasonable requestsExplain matters to clientCommunicate all settlement offers
56
Limiting liability for malpractice
Lawyer cannot do it prospectively unless client has independent counsel.
57
General duties in litigation
Authority to act for client: law,tactic, strategyCivility, courtesy, decorum: mandatory duty to be truthful, aspirational duty to be courteous.
58
Attorney conduct for claims and defenses in litigation
Lawyer must have good faith basis for actions, make only meritorious claims and contentions.
59
Lawyer responsibility with client fraud or perjury
Client is COMMITTING fraud or perjury - lawyer must seek to withdraw from the matter. If denied, or if withdrawal does not resolve the problem, then lawyer may disclose fraud to the judge.Client HAS COMMITTED fraud or perjury - secret cannot be disclosed. But lawyer does have duty rectify false testimony.
60
Communications in course of representation, unrepresented persons.
Can't give leal advice.Cannot appear disinterested when you are in fact an advocate/adversary.Can negotiate a transaction or settle clients disputes with unrepresented person.Only advice you should give them get a lawyer.
61
Different roles of lawyers
Lawyer as advisor: client entitled to all information - entitled to candid advice; should give moral,economic or rival advice.Lawyer as evaluator: doing something for client for benefit of 3p - must be compatible with other aspects of representation, and, clients WIC, must be truthful in evaluation.
62
Duty of lawyer as arbitrator or 3P neutral
Must explain that there is no AC privilegeLitigation, the must withdraw
63
When lawyer acts as trustee for client funds, lawyer must keep money in separate account, in the state where lawyer practices unless...
The client consents to account being in another stateSmall sums may use pooled trust accountNote lawyer funds may only be used to cover bank service charges
64
Lawyer as trustee for client property (other than money)
Lawyer must safeguard clients property in bonded warehouse
65
How does general rule regarding receipt of settlements changed for DISPUTED CLAIMS?
Generally, receipt of style,ent requires prompt notification, keep records, render accounting and pay promptly.For disputed claims, disputed amount remains in client trust account until settled.
66
Retainer, what are the types?
1. Advance on fees (belongs) to client (goes into trust account) and unearned portion is returned if layer is fired or withdraws.2. Availability retainer (belongs) to attorney (goes into lawyers account)
67
Gifts from client?
Allowed if reasonable, but must not draft deed of gift or will, unless you are related to donor.
68
Public communications about services.
Advertising. Cannot be false or misleading - applies to ads, personal communication, office signs. Do not create misunderstandings: 1) cannot create unjustified expectations, 2) cannot have unsubstantiated comparisons, 3) cannot imply results by improper means.Firm names and letterheads. Dead people can stay in name. Ratification names are ok if not misleading.
69
Direct contact with prospective clients - SOLICITATION.
General ban on solicitation.Definition of solicitation: solicitation is seeking fee-paying work through in person, live telephone, or real time electronic contact with a non-lawyer prospect with whom the lawyer has no family, close personal previous rel.
70
Permissible solicitation (unless the prospective has made known to the lawyer a desire not to be solicited by the lawyer)
Targeted direct mailGroup and prepared legal services so long as the memberships or subscriptions for the plan are not solicited from persons who are...EducationNo fee will be takenClose friends and relatives, present clients and former clients.
71
Lawyer Activity in Improving the legal system - judges.
Judges -candor, must reveal adverse decisions or statute o appropriate jurisdiction. Must let judge know of adversarial law, from controlling jurisdictions. Can't bury on adverse decision, but can distinguish bad cases away.No explanation is required to be given to court (duty to reveal not explain)Can offer good faith argument to change the lawNo obligation to reveal facts opposed to your position.
72
Lawyer activity improving legal system - witnesses.
No contingent fees for experts.Can pay reasonable expenses and lost wages lay witnessesNo need to obtain permission of other side to interview witnessesCan advise witnesses they don't have to voluntary testify if 1) person is related to or is an agent of the party that lawyer represents, and 2) the person will be harmed by volunteering.
73
Lawyers interacting with jurors
Lawyer talking to lawyer = disbarment.During trial, no communication with lawyer.After trial, must not communicate if any of these 3 conditions are met: 1. Local law/gvt order prohibits2. Juror tells you they don't want to talk3. Purpose of contract is to harass or coerce the juror.
74
Trial publicity
No public statement outside courtroom that lawyer should reasonably know would have a substantial likelihood of materially prejudicing the cases.Lawyer can speak publicly what a reasonable lawyer would believe is required to protect client from substantial undue prejudicial effect.
75
Special responsibilities of the prosecutor.
Must not prosecute without probable cause.Assure the accused is advised of his counselMust not seek a waiver of pretrial rights from an unrepresented accused.Disclose known evidence and information that ends to negate guilt (Brady rule) or mitigate the degree of the offense.
76
CJC Judicial Ethics; who does CJC apply to?
CJC applies to those who perform judicial functions (including magistrates, court commissions)
77
CJC rules for family members
Judges must take reasonable steps to ensure family members follow the rules.
78
Rules for judge and receiving gifts
Judge can accept and not report BOOKS, HONORARIA or ORDINARY SOCIAL GIFTS, as long as1. Not excessive for purpose/relationship.2. Not reasonably perceived to influence judge3. No gifts from person likely to appear before judgeMust report gifts in excess of $150 (may vary by statute)Can accept and MUST report invitations to attend activity without cost (waived conference fee).
79
Judges and he law.
Must follow the law. 24 hour day duty.Never off dutyCannot use judicial letterhead for personal business.Cannot criticize or commend jury outside court opinion.No continuing business relationship with lawyer likely to come before court.
80
Judges and impropriety and the appearance elf impropriety.
Judges must avoid appearance of impropriety with respect to cases and issues that are likely to come before court.Must not make pledges, promises or commitments that are inconsistent with duties of office when judge creates a reasonable perception that CJC has been violated.
81
Four cannons of CJC. (udep)
1. upholding the integrity and independence of the judiciary2. duties of impartiality and diligence3. Extra-judicial activities including compensation4. Political activity of judges
82
Judge should be disqualified or offer to step down (unless parties remit) when...
1. Judge has personal knowledge of possibly disputed facts.2. If former partner or close relative is party, attorney or witness before the judge (close relative = immediate family NOT COUSINS, and you count spousal family as yours)3. Judge cannot have economic interest in matter before her. Exceptions: mutual funds and securities held by charitable orgs.4. When judge knows parry contributed more than specifics amount to campaign. In an emergency necessity overrides disqualification
83
Judge litigation responsibilities
1. Maintain professional competence2. Prompt disposition of court business3. Responsibility of decorum is on judge, not lawyers4. No ex parte communications with 4 exceptions: expressly authorized by law, emergency, mediation or settlement with consent of parties, de minimums communications
84
Judge and activities to improve the legal system; ADMINISTRATION.
Must not appoint on basis of nepotism or political contributionDisinterested expertsNo independent investigations of facts
85
Judge and activities to improve the legal system; OUTSIDE LEGAL ACTIVITIES.
Judge may serve as officer for organization devoted to improvement of law provided, org is not engaged in proceeding that could come before judge.Judge can't FUND RAISE personally. Judge cannot be guest of honor or keynote speaker at fundraiser judge is involved with.FIDUCIARY RELATIONSHIPS, generally judge must not serve as executor - except for close family - but can if: there is no interference with official duties, proceedings would not come before judge, matter not involved in court under judge's appellate jurisdiction. No economic interest
86
Judges duty to report others
Judge must report to agency if he KNOWS BY PERSONAL/ACTUAL knowledge of lawyer or judge who violates rules
87
Judge and extra-judicial activities including compensation
MAY: serve as officer on nonprofit board, teach, give personal references for others if stated its personal.MAY NOT: serve on profit board, be member of or use organization that discriminates. (actual knowledge of discrimination is key)Exception; private org. designed to preserve religious or cultural valuesOnce judge learns of discrimination MUST resign from org.
88
May judge practice law?
No, unless Practicing pro se, or giving free legal advice to family
89
Judges in business
Judges MUST NOT engage in business dealings that might be perceived to exploit judges position
90
Rules when judge is running for office
Can speak at gatherings, but judge must not make pledges, promises or commitments that are inconsistent with impartial performance of dutiesCan ask for vote for self, but not for ticket.
91
A lawyer is not a bus, she is a piano
Lawyer is not a bus, which takes all comers (except those appointed or oppressed), she is a piano, which has an affirmative duty to respond appropriately and be honest in response.
92
Unconnected lawyer communication with juror
NO LAWYER, whether connected to case or not, may communicate with juror about case.
93
Attorney civil liability for potential clients
Lawyer does not owe duty to of care to prospective client.Lawyer must not represent client in present piece of litigation and substantially opposed in different litigation.
94
What is lawyers duty to client regarding papers?
Lawyer must give client all papers, legal memos and document drafts.
95
Can a judge accept benefits associated with spouse?
Yes, judge may accept benefits that INCIDENTALLY benefit the judge through association with spouse.Acceptance cannot appear to undermine judges integrity or impartiality.
96
Wife wanted to obtain past due child support. She hires a new attorney and they agree to a contingency fee based on 10% of recovery. Is the attorney subject to discipline?
NO. Despite the domestic issue, rules do not prohibit a lawyer from using a contingency fee to recover money that is PAST DUE.
97
Lawyers and drafting legal instruments that bestow gifts on themselves.
Lawyer that drafts an instrument that bestows a substantial gift on himself IS SUBJECT TO DISCIPLINE. Lawyer may not draft legal instrument for client that gives substantial gift to himself, unless relative.
98
If the lawyer suspects, but does not know for sure, both his client and clients mother, who will be witness, of lying, can the attorney call these witnesses to the stand?
YES. Lawyer ha a general duty to client of dedication and commitment. Therefore, lawyer must resolve reasonable doubts in favor of client. Lying requires actual knowledge to act upon.*note lawyer may refuse to offer evidence that he reasonably believes to be false, other than the testimony of criminal defendant.
99
Lawyer did not notify client that settlement check had arrive, is this proper?
NO. Lawyer should have made sure client was promptly notified that check arrived.
100
Lawyer agreed to do legal work on contingency basis, based on 1.75% of gross receipts from movie if they win, is this proper?
The lawyers free agreement is PROPER even though it gives the lawyer a personal interest in the subject of the litigation because THE RULE AGAINST PERSONAL INTEREST IN SUBJECT TO LITIGATION HAS AN EXCEPTION THAT ALLOWS REPRESENTATION FOR CONTINGENCY FEES.
101
Attorney is voting member of legislation committee hat is voting on issue that, if anacted, would materially benefit one of her regular clients. Would it be proper for the attorney to participate in debate and vote?
YES, provided that she informs the legislative committee that she represents an unnamed client whose interests could be materially benefitted by the statue. Rules allow lawyer to participate in law reform activity that will effect the interests of a client.
102
A judge, whose colleagues wrote the majority opinion and he wrote a scholarly dissent on matter A, was invited to testify on a bill that would amend that statute to reflect the judge's position on matter A. May the judge testify?
Yes, because a judge may engage in activities designed to improve the law. Rules only limit SOME types of political activities, not including legislative testimony.
103
Partner and associate form partnership agreement that includes agreement as to fee division, AND that associate will remit to partner all fees he earns after, if he leaves early. Are they subject to discipline?
YES, bc the agreement places a restriction on associates right to practice if he leaves partnership early.
104
If a public accountant,whose testimony is relevant to your clients case, calls you and asks for advice when Ps ttorney calls to speak privately, is it proper for you to advise him to not talk unless subpoenaed?
YES, bc the accountant acted as your clients agent in rendering accounting advice.
105
When are two solo attorneys working in same office space considered a "firm" for purposes of the imputed disqualification rule with respect to conflicts of interest?
Relevant factors in determining whether lawyers who share office space are deemed a firm include: whether they hold themselves out to public as a single unit, frequently consult and assist each other, refer cases to each other, work jointly on cases, and have access to each other files.Mere fact that lawyers share fees does not make them a firm.
106
If a prosecutor states to a reporter hat, "she was certain the D was the right man bc he has a history of crime...etc." is the prosecutor subject to punishment?
YES, bc the prosecutor should have known the statement would likely prejudice the trial.A lawyer who is connected with a case must not make a public statement outside the courtroom that the lawyer should reasonably would have substantial likelihood of materially prejudicing the case.
107
A lawyer strongly suspected, but had no proof that the opposing party was skydiving after he claimed to be totally disabled due to a back injury sustained at work. If the lawyer told opposing counsel he had movies of his party skydiving, is that lawyer subject to discipline?
YES, bc the employer's lawyer lied about having movies.When dealing on behalf of a client with a 3P, a lawyer must not knowingly make a false statement of law or material fact.
108
Is a judge allowed to solicit contributions for her own campaign?
Judge is prohibited from personally soliciting contributions for her own campaign.
109
Is it proper for partner to represent client that was previously represented by another partner in firm, but no other attorney gained access to confidential information?
Yes, it would be proper for second partner in firm to represent client, despite being previously represented by another partner BECAUSE neither the new partner, nor any other lawyer gained access to the confidential information regarding the prior matter.
110
If subordinate lawyer acts in accordance w a supervisors reasonable resolution of an arguable question of professional duty should be abide by partners resolution?
Yes. Subordinate only has duty to call case to courts attention when violation is clearly in point, if debatable go with supervisor.
111
What are the two types of rules?
Mandatory "must rules" and advisory "should or proper rules, aspirational."
112
What are the three levels of scrutiny?
(1) Rational basis, (2) Intermediate scrutiny, and (3) strict scrutiny.
113
When will a law be upheld under strict scrutiny?
If law is necessary to achieve a compelling gvt. purpose.Gvt has the burden of proof.(Most demanding standard on gvt).
114
When will a law be upheld under intermediate scrutiny?
If it is substantially related to an important gvt. purpose.Gvt. has burden of proof. Gvt. purpose becomes important.
115
When will a law be upheld under rational basis test?
If law is rationally related to a legitimate gvt. purpose.Challenger has burden of proof to show no conceivable legitimate purpose.
116
How does the Bill of Rights apply to federal and state governments?
BOR applies directly to Fed.BOR applies to state/local gvt through incorporation via the due process clause of 14th amendment.
117
What are the exceptions to BOR applying to state/local government (AMs not yet confirmed as applying).
3rd (soldier quartered), 5th (grand jury indictment), 7th (jury trials in civil cases), and 8th (excessive fines).
118
8th Amendment protects against
Excessive Fines
119
7th Amendment guarantees
right to jury trials in civil cases
120
5th Amendment guarantees
grand jury indictment in criminal cases
121
3rd amendment protects against
Gvt quartering soldiers in citizen's homes.
122
State Action - Court enforcing racially restrictive covenants?
YES
123
State action - Government leases premises to restaurant that racially discriminates?
YES
124
State action - gvt provides free books to private schools that racially discriminate?
YES
125
State Action - teacher fired from school that is funded 99% by government funds?
NO - no state action
126
State Action - NCAA orders suspension of basketball coach at state university?
NO - no state action when NCAA orders firing of public school coach
127
State Action - Private entity regulates interscholastic sports w/in state?
YES - w/in a state
128
State Action - private club with liquor license from state racially discriminates?
No - not state action
129
What are the exceptions to rule that private conduct need not comply w/ Constitution?
(1) Public Functions Exeption(2) Entanglement
130
What is the public functions exception?
Exception to general rule that private conduct does not qualify as state action.Definition - private entity is performing a task traditionally, exclusively done by the government.
131
What is the entanglement exception?
Exception to general rule that private conduct does not qualify as state action.Definition - constitution applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity.
132
When does the constitution apply to the protection of individual liberties?
When there is STATE ACTION.Private conduct need not comply with the constitution.
133
What are the key rules of State taxation of interstate commerce (not really tested)?
States may not use their tax systems to help in-state businessSubstantial NexusFairly Apportioned
134
What is meant by "full faith and credit."
Concept that court in one state court must enforce all judgments of courts in another state, so long as:Court had personal/SMJJudgment must be on meritsJudgment must be final.
135
What are the exceptions to DCC?
(1) Congressional approval(2) Market Participant Exception
136
What are the exceptions to the Article IV P&I Clause?
NONE.
137
What is required to apply the P&I Clause from Article IV?
(a) Discrimination against out-of-staters (b) Discrimination with regard to civil liberties or important economic activity.
138
Can corporations and aliens sue under the P&L Clause of Article IV?
No
139
Can corporations and aliens sue under the DCC?
Yes.
140
What is required for the DCC to apply?
Burden on interstate commerce.However, does not require discrimination against out-of-staters to apply.
141
What doctrine should be considered if there is a potential issue of gvt action discriminating against out-of-staters?
(1) DCC(2) P&I Clause of Article IV
142
What provision is violated when a law discriminates against out-of-staters ability to EARN A LIVING?
P&I Clause of Article IV UNLESS it is necessary to achieve an important government purpose.
143
Preemption?
Concept under issues of federalism.Definition -- Under the Supremacy Clause (Art. VI) the constitution and laws and treaties made pursuant to it are the supreme law of the land.Bottom line: valid federal law overrides or preempts inconsistent state law.
144
How can preemption be found?
(1) Express(2) Implied -- if (a) it is not possible for someone to simultaneously comply with both fed and state law, (b) state law impedes the achievement of a federal objective, OR (c) Congress evidences clear intent to preempt.(3) State cannot tax where payment would come out of federal treasury.
145
Presidential Pardon
President has power to pardon anyone ACCUSED OR CONVICTED OF FEDERAL (not state) CRIMES, except where person has been impeached by House.Impeachment does not apply to civil liability.
146
Presidential Executive Privilege
Privilege exists for presidential papers and conversations, except where important government interests override privilege.
147
Presidential Immunity
ABSOLUTE IMMUNITY for civil suits for money damages for actions accrued while in office.No immunity for actions occurring prior to taking office.
148
When can the president, VP and federal officers be impeached or removed?
For treason, bribery or high crimes/misdemeanors.Impeachment does not remove person from office.Impeachment requires majority House vote AND conviction requires 2/3 Senate vote.
149
Presidential power of appointment applies to...
Ambassadors, federal judges and OFFICERS.Congress may limit appointment power of INFERIOR OFFICERS.
150
Presidential removal power
President may remove any executive branch official, EXCEPT(i) office where independence from pres is desirable, and(ii) where good cause shown.
151
Is Senate approval required for Executive Agreements? What about treaties?
NO - Exe agmtsYES - Treaties
152
When a treaty or executive agreement conflicts with state law, which controls?
BOTH TREATIES and EXECUTIVE AGREEMENTS control over conflicting state law.
153
When a treaty conflicts with federal statute - which controls?
Whichever was adopted LAST IN TIME controls.
154
When an executive agreement conflicts with federal statute - which controls?
FEDERAL STATUTE controls.
155
When a treaty or executive agreement conflicts with constitution - which controls?
Constitution - always.
156
What are the key legislative powers?
(1) Tax, (2) Spend, and (3) Commerce
157
When does Congress have a police power
General rule - never. However, Congress does have MILD police power in following areas:MilitaryIndian ReservationsLand (federal)District of Columbia
158
Article I, Section 8?
Necessary and Proper Clause. Congress can adopt all laws that are necessary and proper to exercise its authority.
159
When may Congress regulate commerce with foreign nations, Indian Tribes or among the states?
(1) Channels of Commerce, (2) Instrumentality(3) Economic Activity with substantial effect on interstate commerce
160
What is meant by "channels of commerce?"
Channels are the places where commerce occurs, such as waterways, highways, internet.
161
What is meant by "Instrumentalities" with regard to interstate commerce?
Things or persons that facilitate commerce.
162
What is meant by "substantial effect" on interstate commerce?
Substantial BUT NOT CUMMULATIVE.
163
10th Amendment
Acts as a limit on Congressional powers NOT SPECIFICALLY GRANTED to Congress, NOR PROHIBITED TO STATES.These powers are RESERVED to the states or people.
164
Can congress compel state regulatory or legislative action?
NO.But Congress can induce state action with STRINGS ON GRANTS, so long as conditions are expressly stated and relate to purpose of program.
165
Can Congress prohibit harmful commercial activity by state governments?
YES. (10th Am)
166
Which amendment bars suits against states in federal court?
11th Am
167
What is the result of sovereign immunity?
Bars suits against states in state courts or federal agencies, even on federal law claims.
168
What are the exceptions to sovereign immunity (only time state can be sued)?
(1) Waiver(2) Fed. laws adopted under s 5 of 14th Am(3) Via federal government(4) Bankruptcy proceedings
169
Does sovereign immunity apply to state officers?
No, they may be sued.Sued for injunctive relief.Sued for money damages to be paid out of their own pockets, however, May not be sued if damages would be paid out of state treasury.
170
What is abstention?
Rule that federal courts may not enjoin pending state court proceeding.
171
What is the final judgment rule?
Rule that SCOTUS may hear cases only after there has been a final judgment of highest state court OR a US Court of appeals, OR of a 3 judge federal district court.
172
How do virtually all cases come to Supreme Court?
Writ of Certiorari.Court has complete discretion regarding which cases it hears.
173
When must SCOTUS hear case?
When appeal exists from decision of three-judge federal district courts
174
When does SCOTUS have original and exclusive jurisdiction
Suits between state governments.
175
What is required for a case to be justiciable in front of SCOTUS?
(1) Standing and (2) RipenessCase cannot be MOOT or POLITICAL QUESTION.
176
What are the key political questions SCOTUS will not review?
(1) US guarantee to each state a republican form of government (Guarantee CLause)(2) Challenges to POTUS foreign policy(3) Challenges to impeachment/removal process, (4) Challenges to partisan gerrymandering
177
What is the political question doctrine?
Refers to constitutional vioaltions that the federal courts will not adjudicate.
178
What is mootness?
Rule that if events after the filling of lawsuit ENDS Ps INJURY, the case must be dismissed as moot because P must present LIVE CONTROVERSY.
179
What will keep case alive despite probable mootness?
Non-frivilous money damage claims.
180
What is ripeness?
Question of whether a federal court may grant pre-enforcement review of a statute or regulation.
181
When a court questions pre-enforcement review, what is at issue?
Ripeness.
182
What does court consider when evaluating ripeness?
(1) Hardship that will be suffered without pre-enforcement review (HARDSHIP), and(2) The fitness of issues and record for judicial review (RECORD).
183
When the court examines potential hardship and sufficiency of the record, what is likely at issue?
Ripeness.
184
What are the exceptions to mootness?
(1) The wrong is CAPABLE OF REPETITION but EVADES review because of inherently limited time duration (Abortion cases),(2) Volunary cessation, (3) Class Action Sutis
185
Article III
Defines federal judicial power, which requires cases and controversies: meaning a case must be justiciable.Court does not render advisory opinions.
186
What is standing, generally?
The issue of whether P is proper party to bring matter to court.
187
What is required of P to have standing?
(1) Injury(2) Causation & redressability(3) No 3P standing(4) No generalized grievances
188
What is a general grievance, and when is it typically discussed.
Discussed under standing.P does not have standing if they are suing solely as a CITIZEN/TAXPAYER.
189
If P is suing solely as citizen or taxpayer - what result?
P lacks STANDING - this is merely a general grievance.
190
What is meant by "no third party standing?"
A P cannot assert claims of others, of third parties, who are NOT BEFORE THE COURT because P must present proof they personally suffered injuries.
191
What are the exceptions to no third party standing?
(1) Close relationship where P can be trusted to adequately represent interests of 3P(2) Injured 3P is unlikely to assert own rights(3) Organization
192
An organization may sue for its members when...
(a) members would have standing, (b) interests are germain to organizations purpose, and(c) neihter the claim no relief requires participation of individual members.
193
Does a custodial parent have standing for child?
Yes.Only non-custodial parents do not have standing.
194
What is causation & redressability
Element of standing.P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the harm.
195
When a court questions pre-enforcement review, what is at issue?
Ripeness.
196
What does court consider when evaluating ripeness?
(1) Hardship that will be suffered without pre-enforcement review (HARDSHIP), and(2) The fitness of issues and record for judicial review (RECORD).
197
When the court examines potential hardship and sufficiency of the record, what is likely at issue?
Ripeness.
198
What are the exceptions to mootness?
(1) The wrong is CAPABLE OF REPETITION but EVADES review because of inherently limited time duration (Abortion cases),(2) Volunary cessation, (3) Class Action Sutis
199
Article III
Defines federal judicial power, which requires cases and controversies: meaning a case must be justiciable.Court does not render advisory opinions.
200
What is standing, generally?
The issue of whether P is proper party to bring matter to court.
201
What is required of P to have standing?
(1) Injury(2) Causation & redressability(3) No 3P standing(4) No generalized grievances
202
What is a general grievance, and when is it typically discussed.
Discussed under standing.P does not have standing if they are suing solely as a CITIZEN/TAXPAYER.
203
If P is suing solely as citizen or taxpayer - what result?
P lacks STANDING - this is merely a general grievance.
204
What is meant by "no third party standing?"
A P cannot assert claims of others, of third parties, who are NOT BEFORE THE COURT because P must present proof they personally suffered injuries.
205
What are the exceptions to no third party standing?
(1) Close relationship where P can be trusted to adequately represent interests of 3P(2) Injured 3P is unlikely to assert own rights(3) Organization
206
An organization may sue for its members when...
(a) members would have standing, (b) interests are germain to organizations purpose, and(c) neihter the claim no relief requires participation of individual members.
207
Does a custodial parent have standing for child?
Yes.Only non-custodial parents do not have standing.
208
What is causation & redressability
Element of standing.P must allege and prove that the D caused the injury so that a favorable court decision is likely to remedy the harm.
209
If a federal ruling would have no effect, then...
It would be an advisory opinion, and therefore not allowed.
210
What is meant by injury?
Required for standing.P must allege and prove that he was injured or will be imminently injured.
211
Is injury established with mere ideological objection?
No.P may only assert injuries that they personally suffered.
212
What is procedural due process?
The procedures required by the government to take away someone's life, liberty or property.
213
What is the required analysis for a procedural due process question?
(1) Has there been a deprivation of life, liberty or property?(2) If there was a deprivation, what procedures are required?
214
When has a deprivation of liberty occurred?
When there is the loss of a significant freedom provided by the Constitution or statute.
215
When has a deprivation of property occurred?
If a person has an entitlement (reasonable expectation to continued receipt of a benefit) AND that entitlement is not fulfilled.
216
Is government negligence sufficient for deprivation of due process?
NO.Generally, there must be intentional government action or at least reckless action for liability to exist.
217
When is government liable under due process in Emergency Situations?
Only if the conduct "shocks the conscience."
218
If a deprivation of rights occurred, triggering due process analysis, AND a deprivation is found, what test applies to determine procedure?
3-Part Balancing Test:(1) Important interest to individual(2) Ability of additional procedures to increase accuracy of fact-finding(3) Government interest in efficiency and saving money.
219
What are examples of deprivation of rights that requires NOTICE AND A HEARING?
(a) termination of welfare benefits(b) permWhen anent termination of parent's right to custody(c) Before an adult may be institutionalized
220
What due process is required with the termination of social security benefits?
Only a post termination hearing.
221
What result if Ps reputation alone is harmed under due process?
Nothing, harm to reputation by itself is not a loss of liberty.
222
Do prisoners have liberty interests?
RARELY. When asserting a loss of liberty, they frequently lose.
223
What due process is a non-citizen enemy combatant entitled?
Ability to challenge continued detention.
224
When does due process require the recusal of a judge
When there is a substantial risk of bias.
225
What is substantive due process?
Due process analysis used to protect economic liberties and safe guard property.Asks whether government has an ADEQUATE REASON for taking away person's life, liberty or property.
226
What protections are provided for economic liberties?
MINIMAL PROTECTIONSApply rational basis test.Takings Clause.Contracts Clause
227
Under the takings clause (5th Am), how is taking made?
(1) Possessory - government confiscates or physically occupies property.(2) Regulatory - government regulation leaves no reasonably economically viable use of property.
228
If taking of property under the takings clause is for public use, what result?
JUST COMPENSATION must be paid. Economic market value of property when in hands of owner is owed.If not for public use, government must return the property.
229
What is required under Art. I, Section 10 of the constitution?
The CONTRACTS CLAUSE, provides no state shall impair the obligation of contracts.
230
What level of scrutiny apples to government interference with existing private contracts?
Government may interfere if SPECIAL INTERMEDIATE SCRUTINY is met.Does the legislation substantially impair a party's rights under the existing contract?If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
231
Right to Privacy - Justification?
Privacy is a fundamental right protected under substantive due process and therefore strict scrutiny is standard used.
232
What fundamental rights trigger strict scrutiny?
CRACKS-MaPP-TVCustody of ChildrenReligion (Freedom to Exercise)Association (Freedom to)Control raising of childrenKeep family togetherSpeech (Freedom of)MarryProcreatePurchase/Use ContraceptivesTravel Vote
233
When is there a basis for equal protection challenge?
Whenever the government draws a distinction among people.
234
What are the three steps for equal protection questions?
(1) What is the classification?(2) What level of scrutiny should be applied?(3) Does this law meet the level of scrutiny?
235
What are the ways to determine the existence of classifications?
(a) The classification is ON THE FACE OF THE LAW, or(b) If the law is facially neutral, there is both a DISCRIMINATORY INTENT for the law and a DISCRIMINATORY IMPACT to the law
236
Discriminatory intent + discriminatory impact = ?
Requirement to determine the existence of classifications for FACIALLY NEUTRAL laws.
237
What is required for a constitutional law under strict scrutiny?
Law must be NECESSARY to achieve a COMPELLING government purpose
238
What is required for a constitutional law under intermediate scrutiny?
Law must be SUBSTANTIALLY RELATED to an IMPORTANT government purpose
239
What is required for a constitutional law under rational basis?
Law must be RATIONALLY RELATED to a legitimate government interest.
240
What classifications trigger strict scrutiny?
RANT - VRaceAlienage (generally)National OriginTravel (not foreign)Voting
241
What classifications trigger intermediate scrutiny?
GUIGenderUndocumented alien childIllegitimacy
242
What classifications commonly trigger rational basis test?
Alienage classifications related to self-government and democratic processCongressional regulation of aliensAgeDisabilityWealtyhAll other classifications
243
Under the first amendment, a regulation of conduct is _______ likely to be upheld than a regulation of content.
MORE. First amendment primarily protects content.Important to make distinction between conduct and content.
244
What scrutiny is applied to regulations on content?
Strict scrutiny. (Necessary, to compelling government purpose).
245
What is the basic rule regarding the government's regulation of symbolic speech?
The government may regulate conduct that communicates if it has an important interests unrelated to suppression of message AND if the impact on communication is no greater than necessary to achieve gvt goal.
246
What are examples of traditionally protected symbolic speech?
flag burningcross burning (unless meant to intimidate)
247
What is not protected as symbolic speech?
Draft card burning, nude dancing.
248
What types of speech are unprotected or less protected under the 1st Am?
(1) incitement of illegal activity(2) Obscenity and sexually oriented speech(3) Commercial speech(4) Defamation
249
What is the test to determine if speech is obscene?
(a) Material must appeal to the prurient interest, or a "shameful or morbid interest in sex."(b) Material must be patently offensive(c) Taken as whole, material must lack serious redeeming artistic, literary, political or scientific value determined by NATIONAL STANDARD.
250
By what standard is potentially obscene material judged as to whether it has an artistic, political, literary or scientific value?
National standard.
251
Would phrase "Fuck the draft" on a t-shirt (worn by adult in public) be protected by first amendment?
Generally yes, PROFANE AND INDECENT speech is protected.
252
What is the liability standard of a public official OR public figure under a defamation claim?
ACTUAL MALICE.If successful, P may receive compensatory or presumed/punitive damages.Burden of proof - P must prove falsity.
253
What is required for a defamation claim of a private figure on a matter of public concern?
Negligence AND actual injury.If successful, P may receive compensatory damages for actual injury,presumed/punitive damages or punitive damages require actual malice.P has burden to prove falsity.
254
What is the freedom of association?
Freedom from laws that prohibit of punish group membership.These laws must meet strict scrutiny.
255
What is the freedom of religion
Free exercise clause + establishment clause
256
If a regulation on free speech meets the time, place and manner requirements - could it still be invalid?
Yes if overcrowd, vague or gives unfettered discretion.
257
How is commercial speech protected under first amendment?
In determining whether restriction is valid, court asks:(1) does speech concern lawful activity and is not misleading?(2) is there substantial gvt interest, reg advances interest directly and, reg narrowly tailored.
258
True or False: NY constitution provides that there can be no divorces except by judicial proceeding.
True.And there is NO ANALOGOUS provision in the federal constitution.
259
True or False: NY constitution creates the right of employees to organize their collective bargaining arrangements
True.There is no analogous provision under the federal constitution.
260
What is a Batson challenge and how is it preserved on appeal?
Batson Challenge -- challenging juror preemptory strikes based on improper strike for race/gender.Preserved --> Moving party must make specific objections to the exclusion of a juror AND make a prima facie case that its opponent is using preemptory challenges to exclude a certain individual or group from the jury.If prima facie case made -- burden on the jury to provide a race/gender neutral reason for exclusion.
261
What is the key regarding a Batson chllenge?
Batson = challenging use of preemptory challenge, used on race/gender purposes.Must be raised a requisite time during case.
262
What are the 7 intentional torts?
B.A.F.I.T.T.C(1) Battery, (2) Assault, (3) False Imprisonment, (4) IIED, (5) Trespass to Land, (6) Trespass to Chattels, and (7) Conversion
263
What are the elements of battery?
(1) D commits harmful or offensive contact, and(2) Contact must be with Ps person.
264
What qualifies as "contact" for battery?
"Contact" includes anything P is holding, touching or connected to.Ex - purses, glasses, even horse if rider is on it.
265
What is the well-settled quartet for indirect causes of harm?
In following situations, D is held liable and P wins:(1) Intervening Medical Negligence(2) Intervening Negligent Rescue(3) Intervening Protection and Reaction Forces(4) Subsequent Disease or Accident.
266
What is the key principle regarding damages under a negligence claim?
Egg-Shell Skull Principle.
267
What is the egg-shell skull principle?
Principle that provides that once a P proves other elements, that P recovers all damages suffered, even if they are surprisingly great in scope.D takes P as you find them.
268
What are the most common equitable remedies sought by Ps in tort claims?
(1) Preliminary injunction, and(2) Permanent injunction.
269
When is the most appropriate time to discuss equitable remedies/injunctions?
After you have discussed liability for cause of action.
270
What is the function of a preliminary injunction?
Awarded early in the case, to freeze facts, maintain status quo - pending the result of trial on merits.
271
What is the 4-part test for injunctions?
(1) P has no adequate remedy at law(2) P has protectable right involved in particular lawsuit(3) Injunction must be enforceable, and(4) Balance of hardships must tip in Ps favor.
272
What are the three special defenses injunctions?
(1) Unclean Hands(2) Laches(3) First Amendment
273
What is the defense of laches and what does it apply to?
Laches = prejudicial delay.An analogous argument to statute of limitations, argument against an injunction.
274
What is the bottom line regarding preliminary injunctions?
Preliminary injunctions have to show (1) a likelihood of success on the merits AND (2) irreparable harm.
275
What is required to prove proximate cause?
Foreseeability.Victim is foreseeable if liability would be "fair."Look for direct cause OR indirect cause
276
What are the alternatives scenarios to the BUT FOR test for factual causation?
(1) "Merged Cause" = Substantial Factor Test(2) Unascertainable Cause = Shift Burden of Proof
277
What is required for factual causation?
P obligated to established linkage or connection between breach and th injury.BUT FOR TEST.
278
Res Ipsa Loquitor
used by Ps who lack specific evidence about Ds wrongful conduct
279
What are the scenarios where P is allowed to recover for negligent infliction of emotional distress?
(1) Near Miss(2) By-Stander(3) Relationship cases
280
Is there a special standard regarding duty to act affirmatively?
Yes, namely there are NO DUTIES to act affirmatively.You do not have to rescue a stranger in peril. TWO EXCEPTIONS: (1) preexisting relationship, and (2) D caused peril or put P in peril.
281
What must P show to get a special standard established by statute?
Court will borrow statute if P is in class of persons and class of risks intended to be protected by statute.
282
What duty of care does a possessor of land owe invitees?
Possessor of property must proetct from all reasonably knowable traps on the land.Invitees = enter with permission and confer economic benefit on possessor of property (commonly customers).
283
What duty of care is owed to a licensee by a possessor of land?
Possessor of property owes licensee a duty to protect from conditions that:(1) concealed condition with non-obvious danger, and(2) danger is one possessor knew about in advance. Key -- possessor of property who licensees a duty to protect from all known traps on property. Licensees = enter with permission, no economic benefit (commonly social guests).
284
What standard of care is owed by a possessor of land to a DISCOVERED trespasser?
Duty only to protect from a condition that meets 4-part test:(1) condition must be artificial or man-made(2) Condition has to be highly dangerous(3) Condition has to be concealed(4) Danger must be known by possessor of property in advance Key -- possessor of piece of property owes a duty to a discovered trespasser to protect only from man-made death traps.
285
What standard of care is owed by a possessor of land to an UNDISCOVERED trespasser?
No duty owed, zero.
286
What are the 4 types of entrants involved in potential premise liability cases?
(1) Undiscovered Trespasser(2) Discovered Trespasser(3) Licensees(4) Invitees(1) Undiscovered Trespasser(2) Discovered Trespasser(3) Licensees(4) Invitees
287
What is the special standard of care for professionals (Negligence - duty)?
Professional is required to exercise skill and knowledge normally possessed by other members in good standing in similar circumstances.
288
What are the alternative standards of care to RPP?
(1) Special Standard for Children -- child of similar age, experience and intelligence(2) Special Standard for Professionals(3) Special Standard for Premises Liability Cases(4) Special Statutory Standards(5) Special Standard for Cases Involving Duty to Act Affirmatively(6) Special Standard for Negligent Infliction of Emotional Distress
289
What are the exceptions for RPP under the circumstances standard?
(1) Superior skill or knowledge(2) Physical characteristics
290
What is the standard for reasonably prudent person under the circumstances?
General assumption that there is a duty of care.Objective test
291
What are the exceptions for foreseeable victims doctrine?
(1) rescuers (2) claims associated with fetus
292
What is the standard regarding duty and foreseeability of victims under negligence claim?
A victim is foreseeable if they are in the "zone of danger:"Whether P is in zone of danger or immediate vicinity varies by activity type.
293
What two key questions should be asked with regard to duty under negligence claim?
(1) To whom do I owe a duty? A: Foreseeable Victim(2) How much care do I owe? A: Care exercised by reasonably prudent person under similar circumstances.
294
What are the elements of negligence?
Duty, breach, causation (factual and proximate) and damages.
295
Other important economic torts
(1) Malicious Prosecution(2) Prima Facie Tort(3) Inducing Breach of Contract(4) Theft of Trade Secret
296
What are the elements of fraud?
(1) Must be misrepresentation by D, (2) D made false statement intentionally or recklessly(3) D must induce reliance and P relied on statement(4) Damages KEY: somebody lied to you on purpose, with goal of screwing you over, you fell for it and got screwed.
297
What are the 4 sub-claims of the law of privacy?
(1) Appropriations(2) Intrusion(3) False Light(4) Disclosure of Confidential Information
298
Defamation and affirmative defenses.
(1) consent, (2) truth, (3) privilege
299
What are the elements of defamation?
(1) D must make defamatory statement that specifically identifies the P(2) Publication of that statement, and(3) Damages.
300
Defense of necessity.
Only defense to three property torts. (Trespass to chattels, land or conversion).Private v. Public
301
What are the protected privileges regarding torts?
(1) Self Defense(2) Defense of Others(3) Defense of Property (deadly force never allowed)
302
What are the two flavors of implied consent?
(1) implied consent based on customary practice(2) implied consent based on Ds reasonable interpretation of Ps objective conduct/circumstances.
303
What is a key issue regarding the affirmative defense of consent?
Whether P had legal capacity to give consent?Children can consent to age-appropriate actions.Kinds of consent: express and implied.
304
Affirmative defenses and intentional torts
(1) Consent, (2) protected privileges, or (3) defense of necessity
305
What are bailments?
Bailments are created when you surrender possession of item for a limited time and for a limited purpose.Watch for these issues (regarding when a bailment is created): (i) item inside another item, (ii) safe deposit box, or (iii) garages/coat checks.
306
What are liens?
Security device, way of holding personal property until you are paid a debt?General vs. Special Lien
307
Gifts
Inter vivos gifts - given during lifetime of ownerGifts cause mortis - gifts given in contemplation of death
308
Abandoned vs. Lost property?
Abandoned = original owner gives up possession and has intent to relinquish title.Lost = original owner parted with possession but had no intent to relinquish control.
309
What is the primary issue regarding rights of finders of property?
Do they get to keep the item they found?Depends on whether the item was abandoned by original owner or lost.
310
What are the elements to trespass to chattels & conversion?
Both of these torts involve intentional interference with item of personal property. Deliberate, intetnional harm to item.DISTINCTION -- trespass to chattels = small or modest harm. Conversion = significant harm.
311
Regarding trespass to land, what are the ways to accomplish physical invasion?
(1) D can enter property by foot or in vehicle. Regarding intent, D just needs to intend to be where he is - not to trespass (doesn't need to know if he crossed boundary).(2) Throwing, propelling or projecting tangible object on the land.
312
What are the elements of the tort for trespass to land?
(1) D must commit an act of physical invasion, and(2) that act must interfere with Ps exclusive possession of land.
313
Regarding IIED and outrageous conduct, what are the common fragile class of persons?
(1) Children, (2) elderly, and (3) pregnant women.
314
Regarding IIED, what qualifies as outrageous conduct?
Outrageous conduct = conduct that exceeds all bounds of decency tolerated in a civil society.Two things that are not outrageous: (a) mere insults, and (b) if exercising first amendment.Three hallmarks of outrageous conduct:Conduct that is repetitive or continuousCommon carriers/innkeepers who treat guests inappropriatelyP is member of fragile class of persons.
315
What are the elements of IIED?
(1) D must engage in outrageous conduct, and (D need not act intentionally, reckless conduct is sufficient)(2) P must suffer severe emotional distress.
316
Regarding false imprisonment, what qualifies as a "reasonable means of escape" which would negate P being bounded in confined area?
Exit that is REASONABLE.This does not include exit that is dangerous, disgusting, humiliating or hidden.
317
Are threats sufficient to qualify as an "act of restraint" for false imprisonment?
Yes.Provided threat is one that would act as restraint in mind of reasonable person.An omission can qualify as an act of restraint as well.An act of restraint only counts if P knows of it/is harmed by it.
318
What are the elements of false imprisonment?
(1) D must commit an act of restraint, and(2) P must be confined in a bounded area without a reasonable means of escape.
319
Regarding assault, what can negate immediacy even when paired with a menacing gesture?
(1) Conditional words(2) Words in the future tense
320
Regarding assault, what qualifies as apprehension of an "immediate battery?"
Focus - timing.General rule -- words alone lack immediacy, immediacy requires D to make a move or menacing gesture.
321
Unloaded gun problem.
Regarding assault, when D engages in a menacing gesture, but lacks the ability actually commit the battery - an assault can still result if P reasonably thinks the battery may occur. (If P has reasonable apprehension)
322
Battery: what constitutes a harmful or offensive contact?
Harmful - physical injury, broken boneOffensive - contact that violates a reasonable sense of personal dignity or offensive. (Based on normal/ordinary person standard).
323
What are the elements of assault?
(1) D must place P in reasonable apprehension, and(2) P has apprenhension of immediate battery.
324
Regarding assault, what does "reasonable apprehension" mean?
Apprehension = KNOWLEDGE.If P has knowledge of immediate battery (regardless of fear) it qualifies as grounds for assault.
325
What is the majority rule defense to negligence?
Comparative Negligence.
326
What must D show to utilize comparative negligence as a defense?
D must show P failed to exercise proper care for his own safety.
327
If D successfully proves failure to exercise proper care -- what result?
Jury will be instructed to BALANCE Ds fault and Ps fault and assign each litigant a number representing degree of fault.
328
What is the key focus of bar questioning on comparative negligence?
If the consequence results in a reduction of recovery.
329
Modified or partial comparative fault.
If P has fault greater than 50%, then absolute bar to recovery.
330
What are the three key strict liability cases?
(1) Injury caused by animals(2) Abnormally dangerous activity(3) Injuries caused by products
331
What is the general rule regarding strict liability and injuries caused by domesticated animals?
D not strictly liable for domesticated animals (Pets and livestock).
332
Generally, not strict liability for domesticated animals, but what exception?
Strict liability if you keep domesticated animal and you have KNOWLEDGE of its VICIOUS PROPENSITIES.
333
Rule regarding strict liability and wild animals.
If you keep wild animals, you are strictly liable.
334
Rule regarding strict liability and abnormally dangerous activity.
If you engage in abnormal dangerous activity, you are strictly liable.Safety precautions irrelevant.
335
What is an abnormally dangerous activity?
(2-part test)(1) Activity creates foreseeable risk of serious harm even when reasonable care is exercised, and(2) Activity is not matter of common usage within the community.
336
What are the elements of strict liability claim regarding injury caused by products?
(1) D must be merchant,(2) P must show product is defective(3) P must show product that hurt him has not been altered since leaving Ds control, and(4) P must be making a foreseeable use of product.
337
What are the types of defects (P needs to prove one) under a products liability case?
(1) Manufacturing defect(2) Design defect(3) Information defect
338
Nuisance
P suffered nuisance when your ability to use and enjoy property is disturbed to an unreasonable degree.On exam look for balancing interests OR P will recover if his ability to use/enjoy land has been interfered with to an unreasonable degree.
339
What is the key issue in worker's compensation cases?
Distinction between employee and independent contractor.
340
What is the definition of no fault insurance?
No fault is designed to divert minor auto cases from courts.
341
Vicarious liability, when is 3P liable?
Relationships, liability turns on relationship between original tortfeasor and 3P.
342
What are the 4 key important relationships under vicarious liability?
(1) Employer/employee(2) Independent Contractor & Hiring Party(3) Owner of Car/Driver of car(4) Parent & Child
343
What is a licensee?
One who enters owners land with permission for her OWN PURPOSE OR BENEFIT, not the benefit of the property owner.
344
What duty is owed to licensee by property owner?
(1) Duty to warn/make safe regarding known conditions that present unforeseeable risk, and(2) Exercise reasonable care in conduct of "active operations" on property.Note - owner has no duty to INSPECT OR REPAIR.
345
What are the key areas of applicable contract law on the MBE?
(1) Common law(2) Article 2 of UCC
346
What types of Ks does Article 2 apply to?
Contracts for the SALE OF GOODSGoods - moveable, personal property.
347
The common law for contracts applies to ____?
All types of contracts EXCEPT contracts for the sale of goods.
348
A contracts with B for the sale of a toupee for $5, what law applies?
ARTICLE 2 UCCIt does not matter the PRICE or whether the parties are merchants or not. If goods involved, Article 2 applies
349
Martha buys "Guide to Insider Trading" book and the price includes a free class, what law applies?
Article 2 UCC - still.With Ks for mixed goods & services key is to determine WHICH IS MORE IMPORTANT. Here, it is the book.
350
M buys ticket for class, that comes with a free textbook, what law applies?
Common law.This is a contract for services (class) - more important.
351
What is a legally enforceable agreement?
Contract
352
What remedy protects P from unjust enrichment whenever contract law yields an unfair result?
Restitution.Remedy of last resort.
353
If restitution is applicable, what can P recover if victorious?
Reasonable value of benefit conferred.NOT Original contract price.
354
What type of contract can be accepted in any reasonable way?
Bilateral Contract. (Extremely flexible).
355
What type of contract can be accepted only be performance?
Unilateral (Inflexible)
356
What is the first step in determining whether there is an agreement?
Was there an offer?
357
What is the definition of offer?
A manifestation of intent to be bound.
358
What is the most common trick on the bar with regard to offer?
Advertisements!Trick is to be able to spot an advertisement, which are generally NOT offers.
359
Is an advertisement generally an offer? Why or Why not
No.Because there is commonly no "quantity term" and an unlimited number of people could accept.
360
What is the exception to the general rule that advertisements are not offers?
An ad that specifies quantity.
361
Generally, indefiniteness results in an unenforceable offer, what are two exceptions?
(1) Open Price term, court usually reads in a "reasonable" price except regarding sale of real property.(2) Requirements Contracts
362
How can an offer be terminated?
(1) Lapse(2) Revocation
363
What occurs if an offer has lapsed?
The offer has been terminated. An offer lapses after a STATED TERM of a REASONABLE TIME has passed.
364
Who has the power of revocation?
The OFFEROR has the power to revoke an offer, which results in termination.
365
What is the general rule regarding revocation?
An offer can be revoked any time before acceptance.
366
How can an offer be revoked?
(1) Direct revocation, or(2) Indirect revocation.
367
What is required for successful INDIRECT REVOCATION of an offer?
The offeror engages in CONDUCT that indicates he has changed his mind, AND the offeree is AWARE of conduct
368
On March 1, A offers to sell Jessica his Honda for $500. The next day I see my Honda to R, can Jessica still accept my offer?
YES. While conduct indicating seller has changed mind is present, there is NO EVIDENCE Jessica was AWARE that seller changed mind and sold car.
369
What are the four exceptions where an offer cannot be revoked?
OFFS(1) Option(2) Firm Offer(3) Foreseeable Reliance before Acceptance(4) Starting Performance in a Unilateral K
370
What is an option?
A promise to keep an offer open that is PAID FOR.
371
A promises B to keep his offer open for a week, can A still revoke?
YES - merely promising to keep an offer open is not enough.
372
Z promises to keep his offer open IN WRITING, what result?
MBE: Z can still revoke.
373
What is a Firm Offer?
Under Article 2, if a MERCHANT promises in a SIGNED writing to keep an OFFER OPEN, the offer is irrevocable.Note - terms merchant and signed are broadly defined under Article 2.
374
Does a firm offer have a time limit, if so what?
Yes - 3 month time limit.
375
What is the difference between a void contract and a voidable contract?
Void contracts cannot be enforced, but an aggrieved party may elect to enforce a voidable contract.Ultimately, void = K without any legal effect from beginning. While voidable = K where both parties can elect to avoid K (by raising defenses)
376
What is required to form a contract?
MUTUAL ASSENT (Offer + acceptance)CONSIDERATIONNO applicable DEFENSES to formation
377
What is required to qualify as consideration?
(1) Bargained for exchange (something of legal value) OR(2) Substitute for consideration, such as promissory estoppel, detrimental reliance or good faith modification under UCC
378
When is a revocation effective?
Effective when RECEIVED by offeree.
379
When is a written communication received?
When it is DELIVERED to recipient's place of business through which the contract was made or another location authorized to receive this type of communication.Does not matter when recipient actually reads it.
380
What occurs when a merchant states in writing that an "offer will be open for 10 days."
FIRM OFFER under Article 2.(i) Merchant(ii) offers to sell goods in a signed writing(iii) and the writing gives assurances that it will be held open.
381
When is a revocation timely?
When received by offeree.
382
What is the effect of part performance of a unilateral contract?
Offer can NO LONGER be revoked.Distinguish PREPARATION to perform -- substantial preparations to performed do not make the offer irrevocable BUT may constitute detrimental reliance.
383
What is the effect of a counteroffer generally
Operates as a rejection, but mere bargaining does not.
384
What is the effect of a conditional acceptance?
Generally not an acceptance at all. Its actually a rejection.However, offeror can still accept the conditional offer to form contract.
385
What is the mirror image rule?
Under COMMON LAW, there must be an absolute and unequivocal acceptance of each and every term of offer.Any different or additional terms in the acceptance make the response a Rejection or Counteroffer.
386
What is the battle of the forms provision?
Under ARTICLE 2, (which abandoned the mirror image rule) the proposal of additional or different terms by the offeree in a definite and timely acceptance DOES NOT constitute a rejection and counteroffer,but rather is EFFECTIVE as an acceptance, unless the acceptance is expressly made conditional on assent to new/changed terms.
387
Under Article 2, the offeree's new or altered term is included ONLY IF...
(1) Both parties are MERCHANTS(2) There is no MATERIAL CHANGE, and(3) No objection within a REASONABLE TIME
388
Regarding a potential K for the sale of goods, an offeree's written acceptance that DISCLAIMS ALL WARRANTIES (when the offer makes no mention of warranties) results in what?
Offeree's change to disclaim all warranties would likely NOT BE INCLUDED - it is an example of a material change.Material change = change that is likely to cause HARDSHIP or SURPRISE for offeror.
389
If one party dies before acceptance, what result?
Death of either party before acceptance terminates a revocable offer, however, death does not terminate an irrevocable offer (like an option).
390
What is the general rule regarding acceptance?
The language of the offeror controls.
391
Under a bilateral K, what is the function of starting performance?
Stating performance IS ACCEPTANCE (and carries implied promise to finish the job).
392
Under an unilateral K, what is the function of starting performance?
Starting performance IS NOT ACCEPTANCE (so there is no obligation to finish job). Completing performance is acceptance.
393
H offers me $10,000 to paint his house, and I can only accept by painting the House. Once I start painting, can H still revoke his offer?
MBE: NONYBE: H can revoke until completion.
394
What is the effect of an improper performance under the common law?
Simultaneous acceptance and breach.
395
What is the effect of an improper performance under Article 2?
Simultaneous acceptance and breach UNLESS seller is sending the goods as an accommodation to buyer.
396
Mail Box Rule
Acceptance by mail or similar means creates a K at the moment of dispatch (placed in mailbox) provided the mail is properly addressed and stamped.Note exceptions exist.
397
What are the exceptions to the Mail Box Rule?
(1) Offer STIPULATES that acceptance is not effective until received, or(2) Option K is involved
398
To what is the mail box rule applicable?
ACCEPTANCE only. It does not apply to other events in the contract setting, such as rejection or revocation.
399
If the offeree sends a rejection and then sends acceptance, what result?
RACE. Whichever arrives first is effective.
400
General rule regarding offer and silence.
Generally, silence is not acceptance.
401
When is acceptance generally timely?
Acceptance is effective when MAILED.It does not matter if the acceptance gets delayed or lost in the mail either.
402
What are the exceptions to the general rule regarding timely acceptance?
On MBE:(1) Offer states otherwise(2) Irrevocable offer(3) Rejection SENT FIRST
403
If offeree mails a rejection on May 8 and then mails an acceptance on May 9 - what result?
Whichever gets there first is effective.
404
Does the mail box rule apply to irrevocable offers?
No - MBR does not apply to irrevocable offers, acceptance is effective only when received.
405
What are the defenses against formation?
AMPLE(1) Ambiguity/Misunderstanding (2) Misrepresentation/Non-Disclosure of a Material Act(3) Public Policy(4) Lack of capacity(5) Economic duress(6) Mistake about Material Fact(7) No Consideration
406
What is the general rule regarding the defense of lack of capacity?
An incapacitated defendant may DISAFFIRM the K.
407
Minors, Intoxication or Mental Incompetency are all examples of what...
Individuals who lack capacity.
408
If S (adult) contracts to sell a motorcycle to H (minor), but then S refuses to complete the sale - can H enforce the agreement against S?
YES. Even though H is a minor, all we care about is S's capacity - and he's an adult so the K is enforceable.
409
What is implied affirmation?
Relates to defense of lack of capacity.If individual who previously lacked capacity RETAINS THE BENEFIT of the K after (re) gaining capacity - results in an enforceable valid K.
410
What is the exception to the defense of lack of capacity?
An incapacitated party is liable for NECESSITIES but only for their reasonable value., not contract price.(Shelter, food, clothing, medical care)
411
When is the defense of economic duress successful?
When (1) there was threat to break existing K,(2) the only reason buyer agreed to second K was to get 1st deal done, and (3) no reasonable alternative.
412
Is the misrepresentation/Non-disclosure of a material fact a defense to contract formation?
Yes, honest misrepresentation of material fact is a fatal flaw in agreement process.Must go to material fact.
413
B and S contract for the delivery of cotton on the "peerless." B means the one sailing in May; S means the one in July. Neither knows or has reason to know there are 2 ships named Peerless - result?
No K.Successful defense to contract formation.
414
If a party alleges MISTAKE ABOUT A MATERIAL FACT as a defense, what is the difference between mutual mistake and unilateral mistake?
If the parties make a MUTUAL MISTAKE to a material fact, meaning something central to the K, then defense to contract formation exists.HOWEVER, unilateral mistake is not a defense, unless the other party KNEW or HAD REASON TO KNOW of other's mistake.
415
S and B contract for the sale of art print. Both believe the print is by Warhol. What if the print IS by Warhol but is worth 10,000, not 75,000 as they both believed?
K valid. No defense.Mistake as to VALUE is generally not considered material.
416
What is the definition of consideration?
Bargained for legal detriment or benefit. A person can bargain for a promise, performance or even forbearance.
417
If there is no consideration, what result?
No K. Also a defense to K formation.
418
What is the rule regarding PAST CONSIDERATION?
MBE: past consideration is NOT consideration at all.NYBE: past consideration is consideration if it expressly stated in a signed writing and can be proven.
419
What is an illusory promise?
Unenforceable.If B agrees to buy "as many widgets as I want for $100" the promise is unenforceable bc B may not want any widgets at all.However, requirements K ok.
420
What two concepts require a merchant beyond a typical merchant?
(1) Implied warrant of merchantibility(2) Entrustment
421
What are the general rules regarding contract modification under both common law and Article 2?
Common Law: new consideration is required to modify a contract. Performing a PREEXISTING DUTY is not enough.Article 2: Consideration is not required to modify a contract, but you must show good faith.
422
Is the partial payment of debt a debt adequate consideration?
Depends on if the debt is due and undisputed.
423
What is the rule regarding consideration for a time barred debt?
A written promise to pay a debt, collection of which is barred by statute of limitations, is enforceable even without consideration.
424
Visa is barred by the SOL from collecting the $2,500 you owe them. You write VISA: "I know I owe you money. I will pay you $1500." Do you have to pay Visa $1,500.
YES - bc no consideration for VISA promise since you already owed the money and money was due right now.
425
Can promissory estoppel act as a substitute for consideration?
Yes FORESEEABLE RELIANCE may make a promise enforceable even without consideration.
426
What is the court's stance on covenants to not compete?
A court will invalidate or narrow a covenant not to compete that operates as a RESTRAINT OF TRADE.
427
What does the court look to when determining the validity of covenant not to compete?
The court will consider the SCOPE (duration and geography)And the NEED (uniqueness of service).
428
What is an exculpatory clause?
An exculpatory clause can eliminate liability for negligence, but NOT for gross negligence or intentional torts.
429
What about unconscionability.
Generally, not a valid defense against enforcement.Substantive - TERMS are unfair.Procedural - agreement PROCESS are unfair.
430
Generally, what is the statute of frauds?
When a writing is required.Most oral contracts ARE ENFORCEABLE, only certain kinds of contracts need to be in writing to be enforced.
431
What are the typical contracts that fall under the statute of frauds writing requirement?
(1) Transfer of an Interest in Real Property(2) Performance cannot be completed within a year(3) Sale of Goods for $500 or more(4) Lease of Goods for $1000 or more (Article 2A NY Only)(5) Suretyship(6) Contract Modifications(7) Miscellaneous NY Provisions
432
SOF and Transfer of Real Property. Ex - W authorizes an agent to sell his ranch. Must the agent's authorization be in writing?
Yes. Agent's authority concerning real property must be in writing under Equal Dignities Rule.
433
Sesame Street orally agreed to employ Bird for THE REST OF HIS LIFE. Is a writing required? What if Sesame Street orally agreed to employ Bird for THREE YEARS?
Lifetime contract: MBE: lifetime K does not fall under SOF NYBE: Yes requires writing under SOFThree Year contract: Yes, requires writing under SOF.
434
Hillary orally agreed to buy a raft for $500 - is writing required by the SOF.
YES.
435
Gateway alleges that D orally agreed to lease a computer from Gateway for one year at $300/month, is this within SOF?
Yes. Total K amount for the LEASE OF GOODS is over $1,000.
436
H agrees to have P paint house for $10,000. C chimes in, "If H doesn't pay you, I will." Is C's promise to pay me within the SOF?
YES - suretyship.C is liable only if H doesn't pay - C is back up/secondarily liable.
437
When is a contract modification under SOF?
Must be in writing only if the K as modified, not the original, is within SOF.
438
What constitutes a satisfactory writing under under Article 2 (for sale of goods)?
Must contain (1) a quantity term, and (2) be signed by party to be charged with breach of contract.**Remember Art 2 makes it easier to form K.
439
What constitutes a satisfactory writing for any general contract?
Must contain (1) all material terms AND (2) be signed by the D.
440
What are the exceptions to the SOF requirement for general contracts?
(1) Real Property(2) Full Performance Exception (to one year prong)(3) Contracts for Sale of Goods with certain requirements(4) Suretyship
441
What are the exceptions to the SOF requirement under Article 2A - regarding a K for sale of goods for $500 or more?
(1) goods accepted or paid for by buyer(2) custom made goods(3) judicial admission(4) merchants confirmation memo
442
What is the general rule regarding Merchants Confirmatory Memo?
Generally, one party can use its own signed writing to satisfy the SOF against the other party if:(1) both parties are merchants(2) Writing claims agreement/has quantity, and(3) there is no written objection within 10 days.
443
Two merchants agree over the phone and one sends a written confirmation later. What concept is applicable?
Merchant's Confirmation Memo Rule regarding Contracts for Sale of Goods and SOF.Article 2 lets a merchant use ITS OWN CONFIRMATION to satisfy the SOF against ANOTHER merchant.
444
What is the main purpose exception?
Exception to SOF - does not apply in NY.On MBE, if surety's main purpose in making promise was to benefit himself, then no writing required for enforcement.However, in NY writing still required.
445
From what sources can the terms of a contract result?
(1) Words of parties(2) Conduct(3) Seller's Warranties of Quality in a Sale of Goods
446
What is required to discuss a parole evidence rule problem?
A WRITING. So if the fact pattern involves an oral agreement, its SOF not PER.
447
What is the parole evidence rule?
Keeps out evidence of a prior of contemporaneous agreement (Either oral or written) that contracts a LATER writing.Policy: give primacy to later writing.
448
What are the exceptions to the PER, where evidence gets let in?
(1) Correct clerical error(2) Establish defense against formation(3) Interpret vague or ambiguous term(4) Supplement/add to a partially-integrated writing
449
What is the effect of a merger clause?
Merger clause means writing is complete and cannot be supplemented
450
What is the effect of subsequent developments on the PER?
PER has NOTHING to do with what happens after an agreement is reduced to writing.
451
What types of conduct can explain terms or fill in gaps?
(1) Course of performance(2) Course of dealing(3) Usage of Trade
452
What is the best conduct evidence of what the parties intended?
Course of performance.
453
What is an express warranty?
Statement of fact, promise or description of goods for which a seller is liable for breach.Opinion is NOT
454
If the seller uses a sample or model, does this qualify as an express warranty?
YES - common trick
455
What is an implied warranty?
(Implied warranty of merchantability)Definition - the goods are fit for their particular purpose. Seller must be DEALER - not simply merchant.
456
You buy running shoes from Foot Locker, the K is silent as to quality. Is there an implied warranty of merchantability?
YES - shoe store selling shoes = Dealer with specialized knowledge.Dealers make implied warranty/promise that shoes are fit for ordinary use.
457
What is the difference between an Implied Warranty of MERCHANTABILITY and an Implied Warranty of FITNESS FOR A PARTICULAR PURPOSE?
IWM = seller must be dealerIWF = warranty that goods are fit for particular purpose bc seller knows buyer has a SPECIAL USE for goods and is relying on seller to pick out goods suitable for that use.
458
What type of seller can make an implied warranty of fitness?
ANY SELLER, merchant or not.
459
What are the lessor's warranties in a lease of goods?
Same warranties as under Article 2 EXCEPT "finance lease"
460
What is the purpose of warranties, express or implied?
A guarantee or promise which provides assurance by one party to the other that specific facts or conditions are true.
461
What is the rule regarding disclaimers and limitations on warranty liability in sales and leases of goods?
A seller can disclaim IMPLIED, but not express, warranties.
462
What is the effect of "as is" or "with all faults" language?
If K uses this magic phrasing, makes clear to buyer that all implied warranties are DISCLAIMED.
463
What is the general rule regarding limitation of buyer's remedies?
Generally, seller can limit buyer's remedies of ANY WARRANTY (express or implied) if the limitation is not unconscionable.
464
What is the exception to the general rule that seller can limit buyer's remedies for any warranty if limitation is not unconscionable?
PERSONAL INJURY re CONSUMER GOODS.Limiting the buyer's remedies for personal injury in the case of consumer goods is presumed unconscionable.
465
What is the hierarchy regarding ROL (Risk of Loss) when goods are damaged or destroyed before buyer gets them?
(1) Agreement(2) Breach (Breaching party bears risk)(3) Delivery by common carrier(4) Non-carrier cases
466
If one party breaches contract for sale of beer and beer is damaged before it reaches buyer, who bears ROL?
Breaching party, even if the loss is UNRELATED to breach.
467
Who bears the ROL when there is delivery by COMMON CARRIER?
ROL shifts to buyer when seller completes its delivery obligations.
468
When does seller complete delivery obligations under a shipment contract (questions presume this type of K)?
Seller must get the goods to a COMMON CARRIER, make delivery arrangements and notify buyer.
469
When does seller complete delivery obligations under a destination contract?
Seller must get the goods to a specific destination (usually buyers location).
470
What is meant when parties contract for delivery FOB?
FOB New York City, means that the parties contracted for ROL to pass from seller to buyer at this named location, New York City.
471
What is meant by FOB X = where SELLER is located?
Shipment K
472
What is meant by FOB X = anywhere else?
Destination K
473
Who bears ROL where buyer is to pick up OR seller is to deliver goods (w/o common carrier)?
ROL determination depends on whether seller is a MERCHANT.If seller is merchant - seller bears ROL until buyer takes POSSESSION of goods.If seller is not merchant - ROL passes to buyer once seller makes the goods available to buyer (tenders).
474
Who bears ROL in a lease of goods?
NY ONLYGenerally, ROL is on the LESSOR.Exception for finance lease = ROL is on lessee.
475
What is the perfect tender rule?
For proper performance under Article 2, regarding contract for sale of goods, if tender is not perfect, buyer may reject the goods.
476
What is effect of option to cure?
A seller who fails to make perfect tender may have an option to cure. This option depends on whether the time for performance has expired.
477
When does the seller maintain an option to cure after delivery time has expired?
If in the past, buyer had been flexible regarding imperfect tender (had accepted partially imperfect tender) in PRIOR DEALINGS.
478
What is an installment contract?
Requires or authorizes delivery in separate installments.
479
What is the rule regarding the rejection of installment contracts?
The perfect tender rule does not apply to installment K, buyer may reject only for SUBSTANTIAL IMPAIRMENT.
480
What are the limits of a firm offer? (elements)
(1) merchant status, (2) signed writing, (3) reasonable time limit (no more than 3 months held open).
481
What is the term for the court in which an action is commenced?
Original Subject Matter Jurisdiction
482
If a court has general jurisdiction, what types of claims can it hear?
It has the power to hear any type of action."All purpose"
483
What is the only court in NY that has general SMJ?
Supreme Court (most important trial court).
484
Since the SC's SMJ = general, its jurisdiction is unlimited with regard to ...?
(1) Monetary Amount(2) Ability to assert equity claims(3) Residency of parties(4) Place where COA arose.
485
Injunction, specific performance, mortgage foreclosure, accounting, contract recission and the imposition of a constructive trust - are all examples of what?
Equity claims.
486
Does it matter than neither party is a NY resident and that the cause of action has no relation to NY?
No - not a problem.
487
Forum non conveniens
The court has DISCRETION, upon motion, to dismiss the case on the ground of forum non conveniens when action LACKS SUBSTANTIAL NEXUS to NY.Motion must be made by D.
488
What are the exceptions to SC's general jurisdiction?
(1) Cases where federal law confers exclusive jurisdiction(2) Claims for money damages in tort or contract against the STATE OF NY.
489
What is the Court of Claims?
Only court where claims against the State of NY can be brought.
490
What are the three areas the SC court has exclusive jurisdiction over?
(1) Matrimonial Action(2) CPLR Article 78 Proceeding(3) Declaratory Judgement Action
491
Which court has jurisdiction over matrimonial actions?
Supreme Court - it has EXCLUSIVE jurisdiction
492
What court has jurisdiction over cases involving judicial review of NY State and local government AGENCY ACTIONS?
Supreme Court - it has exclusive jurisdiction
493
What is a CPLR Article 78 proceeding?
Judicial review of STATE ADMINISTRATIVE ACTION.Judicial review of NY State and local government agency action. These actions are distinguished from claims against the State for money damages in tort/contract - which must be brought in Court of Claims
494
What court has jurisdiction over cases involving declaratory judgment actions?
SC has exclusive jurisdiction.Declaratory judgment action are judicial declarations of the rights and obligations of the parties to an actual controversey before on of the engages in conduct that could cause liability.
495
What are the three areas the SC court has exclusive jurisdiction over?
(1) Matrimonial Action(2) CPLR Article 78 Proceeding(3) Declaratory Judgement Action
496
Which court has jurisdiction over matrimonial actions?
Supreme Court - it has EXCLUSIVE jurisdiction
497
What court has jurisdiction over cases involving judicial review of NY State and local government AGENCY ACTIONS?
Supreme Court - it has exclusive jurisdiction
498
What is a CPLR Article 78 proceeding?
Judicial review of STATE ADMINISTRATIVE ACTION.Judicial review of NY State and local government agency action. These actions are distinguished from claims against the State for money damages in tort/contract - which must be brought in Court of Claims
499
What court has jurisdiction over cases involving declaratory judgment actions?
SC has exclusive jurisdiction.Declaratory judgment action are judicial declarations of the rights and obligations of the parties to an actual controversey before on of the engages in conduct that could cause liability.
500
If the D wants to challenge the timeliness of a case - what defense should he raise?
Statute of Limitations
