deck_8023115 Flashcards
Present Possessory Estates
1) Freehold Estates (FSA, DEs, FT)2) Life Estates3) Term Estates
Freehold Estates
1) Fee Simple Absolute (best estate, all possible right)2) Defeasible estates (may terminate, includes: FSD, FSSCS, FSSEE)3) Fee Tails (CL rule to limit to grantee’s children only, now disfavored)
Language to create a Fee Simple Absolute
“to A and his heirs” (common law);“to A” (modern law)
Defeasible Estates: def and types (3)
An estate that may terminate upon some happening or event before its maximum duration has run. Includes:(1) Fee Simple Determinable:Terminates automatically on happening of a named future event, and estate returns to grantor(2) Fee Simple Subject to a Condition Subsequent:terminates on occurrence of a condition, power of termination must be expressly reserved to grantor(3) Fee Simple Subject to Executory Interest: on happening of event that terminates estate, property passes to someone other than grantor
Language to create a Fee Simple Determinable
created by durational language (“to A for so long as liquor is not served on the premises”)
Language to create a Fee Simple Subject to a Condition Subsequent
Created by: conditional language as to occurrence of a condition that will terminate estate
Ambiguous language in a FSSCS
If power of termination is not expressly reserved to the grantor, courts interpret it as an attempt to create FSSCS (but it fails, and is just a fee simple, i think)
language creating Fee Simple Subject to Executory Interest
Created by: either conditional or durational language, that places the remainder with a third party (not grantor)
Fee Tail: under CL and modern
A type of defeasible estate, under Common law, which descended to grantee’s children only (“issue of his body” or something)Modern law: fee tails are disfavored and are treated as a fee simple absolute
language creating a Life Estate
limits duration to someone’s life, e.g. “to B for life, solong as B farms land.” Can be made defeasible, as in the example above.
Term Estate
a non freehold estate, limited in duration (basically a landlord-tenant relationship)
Future Interests (5)
Non possessory interest1) Possibility of Reverter2) Power of Termination3) Reversionary Interest4) Remainder5) Executory Interests
Possibility of Reverter
future interest in grantor that follows a determinable estate, created automatically along with a FSD, no speciallanguage needed.Upon happening of the FSD’s event/condition: land automatically reverts back to grantor.
Transferability of FSD
Common law: could not be devised or transferred inter vivos (could pass through intestacy or will)Modern law: freely transferable, devisable, and descendible
“Life estate pur autre vie”
type of Life Estate, where duration of estate is measured by life of someone other than grantee(i.e., “to B for the life of C”)
Right of Reentry
= same thing as Power of Termination, non automatic future interest which must be spelled out
Power of Termination
= same as Right of Reentry, a future interest in grantor when grantor attempts to create a FSSCS or a defeasible life estate. This power is not automatic, and must be spelled out in the conveyance. Upon happening of the event/condition, land does not automatically revert; grantor must do something to retake property.
Remainder, types
a future interest created in a third person that is intended to take after natural terminationof preceding estate. Could be Contingent or Vested.
Transferability of Power of Termination/RoR
Common law: could descend through intestacy or will but could not be devised or transferredinter vivosModern law: freely descendible and devisable but many jurisdiction still limit inter vivos transfers
Language to create a Remainder
mean to begin after natural termination of preceding estate, i.e., “A to B for life, then to C,” creates a remainder for C.
Reversionary Interest, language to create
A future interest retained by grantor when he transfers less than a fee to a third person(i.e., “A to B for 10 years,” creates a reversion back to A after 10 years.)
Transferability of Reversionary interest
Common law: could descend through intestacy or will, but could not be devised or transferredinter vivosModern law: freely transferable, devisable, and descendible
Contingent remainder
Any remainder that isn’t vested
Vested Remainder
a remainder is vested at the point that it is:(a) Created in an ascertainable person; and(b) Not subject to any condition precedent other than termination of preceding estate
Types of vested remainders
Vested remainder subject to total divestment;Vested remainder subject to open
Vested remainder subject to total divestment
A remainder that is presently vested but may be terminated on happening of a future event
language creating a Vested remainder subject to total divestment
“A to B for life, remainder to C, so long as liquor is never served on the premises” C has vested remainder but could lose it by serving liquor on premises
Vested remainder subject to open
A remainder to a class with at least one ascertainable member who has satisfied any conditions precedent to vesting, but other members may join class later
types of class openings in a Vested remainder subject to open (2)
(1) Inter vivos conveyance: class opens at time of conveyance(2) Testamentary conveyance: class opens at death of testator
application of RAP to class closing
The Rule Against Perpetuities (RAP), which can void a future interest, generally does not apply to vested interests except: vested remainder subject to open.If any member of a class could potentially claim in a way that violates the RAP, it will knock out entire class gift
Executory Interest
A future interest in a third person that ends previous estate before it would have naturally terminated.Any interest created in a 3rd party that follows granting of a fee will always be an executory interest.An executory interest in subject to the RAP.
Types of executory interests (2)
(1) Shifting executory interest: passes from grantee to grantee (most common)(2) Springing executory interest: transfers property from grantor to grantee or grantee to grantee
Waste and future interests
An owner of less than a fee estate cannot commit waste (i.e., harm property at expense of person who will hold it after them).A remainderman has standing to sue for past or future waste.
Types of waste (3)
(a) Voluntary waste = cannot intentionally or negligently damage property(b) Permissive waste = failure to take take reasonable steps to avoid damage(c) Ameliorative waste = tenant makes improvements to the land
Common law re waste
tenant was not allowed to make substantial alterations unless authorized to do so. Tenant could be liable for cost of restoring the land to its previous condition
Modern law re waste
A tenant is now allowed to commit ameliorative waste if:1. Market value of remainderman’s interest is not impaired; and2. Permitted by remainderman; or3. Substantial and permanent change in neighborhood that justifies improvement
Rights of different types of remaindermen to sue for future waste:
(a) Vested remainderman: can sue for damages or an injunction to stop waste from occurring(b) Contingent remainderman: can sue for an injunction to stop waste from occurring (no damages)
Application of the Rule Against Perpetuities (RAP)
(1) Identify type of interest RAP applies to: executory interest; contingent remainder; vested reminder subject to open; purchase option; right of first refusal(2) Is it possible to interpret facts so someone can claim an interest more than 21 years after everyone currently alive is dead? (a) If yes, the interest is wiped out and interpret the rest accordingly; (b) if no, the interest will stand
Restraints on Alienation
Total restraint(1) On a fee: generally not valid(2) On less than a fee: will be upheld if reasonablePartial restraint (i.e., purchase option and right of first refusal): valid if reasonable, on both a fee and less than a fee.
Types of co tenancies
Tenancy in common = each co-tenant owns an undivided interest in the whole of the property. No right of survivorshipJoint tenancy = each co-tenant owns an undivided interest in the whole of the property and has a right of survivorship
Creation of a Tenancy in common
Creation requires unity of possession (each tenant has right to possess whole)
Creation of joint tenancy
Traditionally, a joint tenancy requires for unities (TTIP):(a) Time (take at the same time);(b) Title (take by the same instrument);(c) Interest (take equal shares of the same type); and(d) Possession (each tenant has the right to possess the whole)Today, most jurisdictions require only interest and possession
Severance of a joint tenency:
Severance can be done by inter vivos act if one of the parties:(1) Seek a partition action(2) Joint tenant sells his interest in the property(3) Joint tenant mortgages his interest in the property (a) Majority view (lien theory): mortgage is viewed as a lien on the property, will not sever (b) Minority view (title theory): mortgage is viewed as a title to property, will sever
Tenancy by the entirety, and its severance
A joint tenancy where the parties are married.Severance occurs when:(1) they jointly convey the property to another;(2) one spouse conveys propertyto the other; or(3) divorce
Rights and duties of co-tenants
(1) Possession: each has a right to possess the whole(2) Profit(3) Payments/Expenses
Co tenants’ rights to profit
(1) A profit produced by one of the co-tenant’s efforts: other co-tenants have no right to share in those profits (unless they’ve been ousted from the property)(2) A profit generated by a third party (i.e., rent): all co-tenants are entitled to a proportionate share of the profit
Expenses of co-tenants
(1) Taxes/mortgage payments: each co-tenant must pay proportionate share(2) Repairs: a co-tenant may be permitted to reimbursement from rents collected(3) Improvements: generally, a co-tenant is not entitled to reimbursement. Exception: if property is sold, amount attributable to the improvement goes to tenant who made the improvement.
Landlord/Tenant relationship creation
creation is through a lease, which can be oral or in writing (writing is necessary for leases longer that one year)
Types of Leases (4)
(1) Term of years(2) Periodic Tenancy(3) Tenancy at-will(4) Tenancy at sufferance (holdover tenant)
Term of years
(1) A lease that has a definite beginning and end (need not be a year)
creation and termination of a Term of Years
Creation: express agreement between LL and tenant for a term specified in the leaseTermination: automatically at the end of the period; no notice is required
Periodic Tenancy
A lease with a set beginning date and continues from period to period until proper notice is given
Creation/Termination of a Periodic Tenancy
Creation: expressly or by implication with a holdover tenant.Termination: LL or tenant must give appropriate notice of intent to terminate
Requirements for proper notice for a Periodic Tenancy
Appropriate notice must be:(i) in writing, if the lease/state statute so specifies, otherwise it can be oral; and(ii) equal to the rental period up to a maximum of six months (i.e., one-year tenancy reqs six-months’ notice)Timing of notice(i) Common law: notice had to be given at the start of the rental period(ii) Modern law: notice is good whenever given but does not take effect until the start of the next rental period
Tenancy at-will (creation/termination)
Creation: generally, express agreement of partiesTermination: it terminates:(a) freely as soon as either party decides (no notice requirement)(b) if either the LL or tenant dies(c) if either party attempts to transfer their interest
Tenancy at sufferance (holdover tenant)
Creation: a holdover situation (i.e., tenant does not move out at end of the agreed-upon tenancy)A holdover tenant becomes: a periodic tenant or a tenant at sufferance. Determining factor is the LL:(i) If LL wants tenant to remain on the land, tenant become a periodic tenant(ii) If LL does not want the tenant to remain on the land, becomes a tenant at sufferance until the LL can get tenant off the propertyCrucial factor: acceptance of rent. If the LL accepts rent, this is evidence that LL wants tenant to stay.
Common Disputes between LL and Tenant
(1) Fights over Rent(2) Condition of the Premises and Who has the Obligation to Maintain (including disputes of possession, improvements )(3) Assignment and subletting
How much rent the LL can sue for (for 4 types of tenancies)
Tenancy for years = tenant is liable for all unpaid rent in the lease(a) Common law: LL could only sue for rent as it accrued(b) Modern majority: follows anticipatory repudiation but LL has a duty to mitigate (i.e., make reasonable efforts to rent the property)Periodic tenancy = tenant liable for rental obligation until notice is given to terminate the leaseTenancy at-will = tenant liable for amount of rent stated in the agreement that is alreadyowedTenancy at sufferance = tenant liable for the reasonable rental value of the property
Tenants defenses in rental disputes (4)
(1) Failure to deliver possession(2) Tenant has been evicted(3) Tenant surrenders premises to LL (LL must accept the surrender and retake possession of the premises)(4) Destruction(5) Warranty of Habitability
tenant’s defense of Failure to deliver possession
(a) Majority rule: LL has obligation to deliver possession(b) Minority (“American”) rule: LL has no obligation to deliver possession of the premises; tenant must take it
Types of eviction
Actual eviction = tenant is physically removed from all or party of the property (tenant is excused from paying rent)Constructive eviction = the property is in such bad condition that tenant is essentiallybeing forced out (tenant must actually move out within a reasonable time)Total constructive eviction: defense to the payment of any rentPartial constructive eviction: reduction in rent only
tenant’s defense of destruction
Common law: generally did not excuse payment of rentModern law: destruction is a defense to payment of rent. Exception: tenant intentionally or negligently causes the destruction.
LL’s Warranty of Habitability
Requires LL to maintain the premises in a habitable conditionRule: to claim breach of implied warranty of habitability, the tenant must:1. provide LL with notice; and2. allow LL reasonable time to repair itMajority: applies to residential leases onlyMinority rule: applies to residential and commercial leases
Condition of the Premises and Who has the Obligation to Maintain: LL’s obligations
(1) Common law: LL has no obligation to maintain or repair leased premises(2) Modern law: warranty of habitability (see above)
Condition of the Premises and Who has the Obligation to Maintain: Tenant’s obligations
Ameliorative waste(a) Common law: no obligation to make improvements and LL could hold tenant liable(b) Modern law: tenant can improve if expressly authorized or a change in circumstances warrant the improvements to be made
LL/T Fight over possession
Rule: LL can retake the property if the tenant has committed a material breach of the lease.Common law: LLs were entitled to use reasonable force to retake possession from the tenant.Modern law: majority of jurisdictions no longer allow use of any force and LL must use legal process.
LL/T Dispute over improvements
Common law: anything (except a trade fixture) affixed to the land became part of the land and had to stay (w/trade fixture exception)Modern law: if the fixture can be removed without effecting the premises, the tenant is entitled to remove the fixture (no distinction between trade fixtures)
Trade fixtures
item used in the course of the tenant’s trade or business.Rule: trade fixture could be removed unless removal would cause substantial damage to the property
LL’s transfer of interest
If a LL transfers his interest, whoever is the LL of record on the date rent is due is entitled to that rent
types Tenant’s transfer of interest (2)
Assignment = tenant transfers all of the remainder of the rental obligationSublease = tenant transfers only a portion of the time left on the rental obligation
Liability of parties when a tenant assigns his interest
The assignee comes into privity of estate with LL.Assignee is liable to LL for rent unless he re-assigns to a new assignee whotakes over privity of estate.Tenant remains in privity of contract with LL, and is liable to LL for rent, even after assignment, unless there is a contract novation.
Liability of parties when a tenant subleases
The sublessee comes into privity of estate and privity of contract with the tenant, owing the tenant rent.Tenant continues to owe rent to LL.
Permissibility of Transfer of interest in leases
Generally, interests in leases are fully transferable.To prohibit both an assignment and a sublease, the lease must specifically state that both are prohibited.
Covenants that Run with the Land
(1) Covenants(2) Equitable servitudes(3) Implied reciprocal servitude
Covenants (creation)
for a covenant to run with the land, the following elements must be met (PINT):1) Privity: horizontal and vertical2) Intent that the covenant runs with the land (SoF appllies)3) Notice: The current owner of the servient estate must take with notice of the restriction (requirement on servient side only)4) Touch and concern the use and enjoyment of the land (must reduce/increase u&e of serviant/dominant estate)
Equitable servitudes (creation)
three elements of an equitable servitude (TIN):(1) Touch and concern the land: Burden must run with the servient estate; benefit with the dominant estate(2) Intent: the writing (Statute of Frauds applies) shows intent that the restriction run to future landowners(3) Notice: current owner of the servient estate took with notice
Implied reciprocal servitude
Elements:(1) Restriction is party of a common scheme or plan for development of the area; and Factors to show “common scheme”(2) Current owner of the servient estate takes with notice of the restriction
Horizontal privity
= relationship between original covenantor and covenantee.Requires privity of contract in connection with land (i.e., LL/tenant, grantor/grantee, mortgagor/mortgagee)
Vertical privity
= the relationship between an original party and the successor in interest to the original party (privity of estate).In order for the burden to run, privity of estate will only exist when the holder ofthe servient estate transfers all of his interest in the servient estate to the newowner.
Factors showing a “common scheme” for the purposes of an Implied reciprocal servitude
a large percentage of lots expressly burdened; oral representations to buyers; statements in advertisements to buyers; or recorded plot maps or other declarations, etc
Terminating a covenant or equitable servitude
May be terminated by:written release;merger of the dominant and servient estates;abandonment;estoppel, or changed circumstances so that the reason behind the restriction is no longer valid
Servient estate
estate that is burdened by the easement (must always have a servient estate)
Dominant estate
estate that is benefited by the easement (do not always have to have a dominantestate)
Easement appurtenant
benefits a parcel of land and has a dominant estate
Easement in gross
benefits a person or entity rather than a piece of land (no dominant estate)
Ways a Easement may be created:
1) Expressly – a writing must satisfy the Statue of Frauds2) By Implication (by Prior Use; by Necessity)3) By Prescription (Adverse Possession): actually, openly, notoriously, and exclusively uses land with hostile intent for the statutory period.
Types of Easement by implication
Easement implied by prior useEasement by necessity
Easement implied by prior use, elements
requires:(a) Common ownership of dominant and servient estates, then severance;(b) Prior use of quasi-easement;(c) Use was apparent or could be discovered upon a reasonable inspection; and(d) Reasonable necessity
Easement by necessity, elements
(a) Common ownership of dominant and servient estates, then severance; and(b) Strict necessity
Scope of Easements
If express easement states use, then that is only allowable use. Apart from that, an easement can be used to the extent that it is reasonably necessary to do so.Holder of easement may do what is reasonably necessary to maintain the easement, even if it interferes with the servient owner’s use of his property.
“Surcharging the easement”
Going beyond what is reasonable. Doesn’t terminate the easement, but the servient estate can sue for an injunction ordamages.
Termination of Easements
1) Destruction of the servient estate2) Termination based on actions of the easement holder3) Termination based on actions of the owner of the servient estate4) End of necessity: for easement by necessity, ends when the necessity ends
Destruction of the servient estate…
…generally will terminate an easement unless the owner of the servient estate intentionally caused the destruction
Termination based on actions of the easement holder
1) Merger of title2) Written release: expressly terminating his rights in the easement (SoF)3) Abandonment: an affirmative act in furtherance of the intent; and intent to abandon4) Estoppel: owner of the servient estate foreseeably and detrimentally relies on the holder’s action/abandonment5) Severance: owner of dominant estate tries to sever the easement from the dominant estate (only arises with easement appurtenant)
Termination based on actions of the owner of the servient estate
1) Prescription: owner of the servient estate interferes with the use of the easement for the statutory period2) Servient estate is sold to a bona fide purchaser (pays value and takes without notice)
Merger of title
owner of the dominant estate also acquires the servient estate. terminates easement
Profits
The right to go on someone else’s land and take something off of it.Creation: can be created expressly or by prescription only (analysis is otherwise same as easements).Termination: same as easements
Licenses
A privilege to go on land (a personal right, not an interest in the land).Licenses are freely revocable at any time, for any reason, unless the license is Coupled with an Interest, or Executed.
License Coupled with an interest
The licensee purchases personal property that is located on the licensor’s property and is given permission to come onto the land to claim that property
Executed License
The licensee expends money or labor in reliance on the license; license is irrevocable until the person gets value out of the expenditure.
Transferability of licenses
Licenses are not transferable unless the licensor so intends
Termination of Licenses
Licenses terminate on the death of the licensor or the conveyance of the servient estate
Support rights include
lateral support and subjacent support
Lateral Support
General rule: someone has an absolute right to lateral support, so if someone fails to provide it, the adjoining landowner will be strictly liable for any damages suffered.
Approach to Lateral Support disputes:
If the land has been improved, ask:would the property have subsided anyway, or was it the weight of the improvement that caused the land to subside?(1) If the land would have subsided anyway: remains strictly liable(2) If the weight of the improvement caused the land to subside, the adjoining landowner is liable Only if he was negligent in depriving the property of lateral support
Subjacent Support
General rule: the right of support extends to:(1) Land in its natural state; and(2) Buildings existing on the date when the subjacent estate was severed from the surfaceHowever, the underground landowner is liable for damages to subsequently erected buildings Only if he is negligent.
Riparian View of water rights
Majority view:Anyone within the watershed (touches the lake or stream) has a right to make reasonable use of the water
Prior Appropriation/Use View of water rights
Minority view:Awards the right to use water to the first person to take water for beneficial purposes.
Requirements of land contracts
The Statute of Frauds requires a writing for a transfer of an interest in real property.The writing must be signed by the party to be charged and must include:(1) Description of the property;(2) Description of the parties;(3) Price; and(4) Any conditions of price or payment if agreed on
Exceptions to the Statute of Frauds for transfers of interests in land
1) Doctrine of part performance2) Equitable and promissory estoppel
Doctrine of part performance
The acts of part performance unequivocally prove the existence of the contracts (even w/o a writing), and requires a showing of some combination or all three of the following:(a) Payment of all or part of the purchase price;(b) Taking of possession;(c) Making substantial improvements
Equitable and promissory estoppel to prove an oral contract for the sale of land
Exception to SoF.Equitable estoppel is based on an act or a representation.Promissory estoppel is based on a promise
Equitable Conversion
Definition: there is a bifurcation of title when a land-sale contract is formedEquitable title: passes to the buyerLegal title: remains with the seller until the deal closesMajority rule: risk of loss is deemed to follow equitable title, so the risk of loss is on the buyerMinority rule: risk of loss remains with the seller until the legal title or possession of the property passes to the buyer.
Covenant of Marketable title
= title reasonably free from defects in both fact and law (not perfect title).This covenant only manifests itself at the date of closingMajority rule: a seller may use the proceeds of the sale to remove a cloud on title and make it marketable.
Defects to marketable title may include:
(1) Unpaid mortgage or lien;(2) Covenant or easement that restricts use of land;(3) Title acquired by adverse possession until the adverse possessor quiets title; or(4) Existing condition on the land that violates a zoning ordinance
Merger (in transfer of interest in land)
Land-sale contract merges into the deed, and since the covenant of marketable title is implied in the contract, buyer cannot assert the contract, and must sue on the deed.
Types of deed
1) Quitclaim2) General Warranty3) Special Warranty
Quitclaim deed
an as-is deed (no warranties/covenants), and seller conveys whatever interest he has and buyer can’t sue
Warranty deed:
buyer can sue on the deed through one of the covenants of title contained in thewarranty deed.Can be general or special
General warranty deed
contains all six covenants of title (3 past and 3 future), which covers the period prior to the sale, and Seller warrants there are no defects in the chain of title
Special warranty deed
may contain some or all of the covenants, and may limit liability to the period that the grantee owned the land.Seller warrants that no defects have occurred during his ownership.
Present covenants in a general warranty deed
*do not run with the land and can be breached only at the time of closing:(1) Seisin (grantor promises he owns the property)(2) Right to convey (grantor promises he has the power to convey the property)(3) Covenant against encumbrances (grantor promises there are no encumbrances on the property)
Future covenants in a general warranty deed
*runs with the land and breach can be at the time of closing or afterwards:(1) Quiet enjoyment (grantor promises that grantee won’t be disturbed by a third partyasserting a valid claim to the land)(2) Warranty (grantor promises he will defend the grantee against any third-party claim)(3) Further assurances (grantor promises he will do everything reasonably necessary to perfect grantee’s title)
Fitness and Suitability
Duty to disclose material latent defects known to the seller but not readily observable and not known to the buyer.Applies to commercial builders and developers of new homes.
Implied Warranty of Quality
Applies to sale of new or remodeled homes by builders and developers (does not apply to commercial structures).Defects must be discovered within a reasonable time after construction or remodeling (covers significant latent defects).
Types of Security Devices
1) Mortgages2) Deed of Trust3) Purchase-Money Mortgage (PMM)
Mortgages
Mortgages must be in writing to satisfy the Statute of FraudsCreditor’s remedies: choice to sue in personam (on note); or an in rem foreclosing on the land (through mortgage)
Instruments that make up a mortgage:
(1) Mortgage (document that represents an interest in land)(2) Note (represents the personal obligation of debtor to repay the debt.Creditor can sue on either.
Deed of Trust
Debtor (the settlor) borrows money and executes deed to property, and a third person (the trustee) keeps the deed until debtor pays debt
Purchase-Money Mortgage (PMM)
= A mortgage that covers part or all of the purchase price (i.e., not a mortgage obtained to remodel a home).A PMM that is recorded has priority over other types of mortgages
Security Relationship Theories
1) Lien theory: mortgagee receives lien on property, mortgagor possesses property and has right to rents and profits from property2) Title theory: mortgagee has rights to rents and profits from the property, mortgagor retains possession (until default)3) Intermediate theory: lien theory applies until default (mortgagor has rights to possession, rents, and profits); thenupon default, title theory applied (i.e., mortgagee is entitled to possession, rents, and profits)
Duties in a securities relationship
a person in possession has duty to manage property in a reasonably prudent manner (i.e., can’t commit waste)
Transfers by Mortgagor
Mortgagor can make three types of sales of land encumbered by a mortgage:1) Buyer takes “subject to the mortgage” (i.e., buyer has no responsibility to pay on it, either before or after foreclosure, this is the default);2) Buyer “assumes the mortgage” (i.e., buyer becomes personally liable for it, along with original borrower);3) Buyer “assumes the mortgage” plus a novation with the lender, so that buyer is only personally liable for paying mortgage.In each case, the mortgage remains on the land and is available if the mortgagee needs to foreclose on it.
Liability when mortgage is assumed:
(1) If debt falls into default: creditor can sue grantor, and grantor can get a court order compelling grantee to pay debt(2) If grantor makes payments following the transfer: grantor can sue grantee forreimbursement
Due-on-sale clause
Gives mortgagee the option to require entire debt be due and payable upon any transfer (enforceable if in the mortgage)
Transfers by Mortgagee
Mortgagee may transfer the note and mortgage, which travel together
Discharge of Debt and Mortgage
a) Prepayment of Mortgage: No right to prepay mortgage debt unless the terms of mortgage expressly authorize payment.b) Deed in lieu of Foreclosure: Mortgagor issues a deed in lieu of foreclosure, which takes subject to all mortgages on the property. Junior lienholders are unaffected
Types of foreclosure:
i) Judicial foreclosure (i.e., judicial proceeding with pleadings, service of process, etc.)ii) Private sale/power of sale (i.e., private party conducts a public sale)There is no limit to the number of mortgages that one may have (“first in time, first in right” principle applies)
Deficiency judgment
when foreclosure sale raises less money than the amount of theoutstanding debt
Redemption
Debtor’s remedy is redemption. Redemption will stop the foreclosure if debtor pays off debt or brings loan current (all payments due and fees paid)An acceleration clause prevents debtor from using redemption (not always upheld)
Adverse Possession (AP)
3 major components: physical, mental, timePhysical: Adverse possessor actually, openly, notoriously, and exclusively occupies the land in a manner sufficient to put the true owner on reasonable notice of the AP.(a) Minority rule: Requires adverse possessor to also pay taxes on the property.Mental: adverse possessor has to occupy the land with a sufficiently hostile intent(a) Hostile = claiming the land as your own(b) Permission to be on the land destroys hostile intentTime: adverse possessor has to be on the land continuously for the statutory period(common law: 20 years)(a) “Continuously” is a question of fact based on the nature of the land and the use to which it is being put
Two ways to satisfy the “hostile” requirement for AP
(a) Claim of right (claiming the land as your own); or(b) Color of title (falsely believing you have good title to the property under a deed)
Split of authority on whether encroachment is hostile intent:
(a) Majority rule: a mistaken encroachment is sufficient hostile intent(b) Minority rule: hostile intent exists only if the person who was doing the encroaching intended to encroach
Tacking for AP
Combines AP periods to meet the statutory requirement; musty be a transfer from oneadverse possessor to another
Scope of what the adverse possessor takes
Generally, can only claim the portion of the land actually occupiedException: when claiming under color of title, adverse possessor gets all the land described in the flawed deedAdverse possessor gets whatever the true owner has (i.e., if true owner sold sub-surface rights, adverse possessor gets surface rights only)
Disability in AP context
A disability (infancy, incompetence, imprisonment) can suspend the running of the statute of limitations if: the disability exists at the time the AP startsThe AP period begins to run once the disability ends (i.e., true owner gets out of jail or turns 18)
Rights of the adverse possessor and true owner
True owners: can eject the adverse possessor and collect damages up to the point the statutory period has run.Adverse possessor:(1) When the AP begins, the possessor is considered to be the owner against the entire world except the true owner(2) Once the statute of limitations runs, the adverse possessor is the true owner as of the date he entered the land
Transfer by Deed
Three requirements for a valid conveyance: writing, delivery, acceptance
Deed sufficient to satisfy the Statue of Frauds
Four written requirements of a valid deed:(a) Sufficient identification of the parties;(b) Words indicating an intent to make a present transfer of the property;(c) Sufficient description of the property; and(d) Grantor’s signature (grantee doesn’t need to sign deed)
Delivery of the deed
Delivery exists if: grantor has the mental intent to transfer the property to the granteeWays to deliver the deed:(a) Give it to the grantee (rebuttable presumption of delivery)(b) Retain the deed (rebuttable presumption of no delivery)(c) Give deed to a third party (i.e., escrow) to give to grantee(i) Relation-back doctrine: conveyance to grantee relates back to the date grantorgave the deed to third party(ii) If grantor expressly retains the right to reclaim deed from the third party, there isno transfer of title
Acceptance of the deed by the buyer
Acceptance is presumed if the transfer is beneficial to grantee.If grantee refuses to accept, there’s no transfer of property.
Transfer by Operation of Law and Will: When seller dies before closing
If seller dies after executing a sales contract but before closing, decedent’s personal representative must complete the sale.Money received goes to the beneficiary who inherits personal property.
Transfer by Operation of Law and Will: Ademption
Ademption by extinction: property is described in a will but isn’t in testator’s estate at time of deathAdemption by satisfaction: property was gifted during testator’s lifetime but the property is still mentioned in the willIf a gift of property was made during testator’s lifetime, but a general devise is in the will (e.g., “one-third of my estate”), then the property already received will not be adeemed by satisfaction unless:(1) Will provides for deducting the gift;(2) Testator, in writing, declared that the gift was part of the general devise; or(3) Devisee, in writing, acknowledged that the gift was part of the general devise
Transfer by Operation of Law and Will (4 ways)
1) Transfer by Operation of Law and Will2) Ademption3) Exoneration4) Lapse
Exoneration
Majority rule: inherited property is taken subject to all outstanding liens and mortgages (estate does not pay them off)
Lapse
Common law: if a beneficiary predeceases a decedent, any gift to the beneficiary failsModern law: many states not have anti-lapse statutes (i.e., beneficiary’s heirs “stand in his shoes” and get the bequest)
Title Assurance Systems
1) Recording Acts2) Indexes (how to record a conveyance)3) Estoppel by deed4) Shelter rule5) Title Insurance
Recording Acts (3)
1) Race Statute: the person who records first prevails2) Notice Statute: a purchaser for value who takes without notice of any other claim (a bona fide purchaser) prevails; Pays value = paying more than a nominal amount (i.e., purchase price or reasonable amount)3) Race-Notice Statute: an unrecorded conveyance is invalid against a subsequent bona fide purchaser who records first
Types of notice
actual, constructive, or inquiry
Indexes
=how to record a conveyanceTract index (minority)(1) A legal description of the tract of land followed by a chronological listing of all conveyances involving that piece of land(2) You would immediately see any recorded conveyance and will always have constructive notice of a claim to propertyGrantor-grantee index (majority)(1) Two sets of books where the conveyance is recorded: one arranged by name of grantor, the other by name of grantee
Estoppel by deed
Applies to a situation where someone transfers title to property that they do not have but then later acquire title to(1) Majority rule: if grantor transfers title to property before he has title to property and then attempts the transfer property to another person, the first grantee may go to court and estop the grantor from denying title to him(2) Minority rule: title automatically passes by operation of law to grantee (operation-of-law theory)
Shelter rule
Protects a subsequent purchaser who wouldn’t otherwise have good title, “shelters” under good title of predecessor
Title Insurance
Title insurance can be purchased at the time of closing so that if there is a defect in the chain of title, an unexpected encumbrance, or other similar problem, the buyer can make a claim under the insurance policy
well pleaded complaint rule
for FQ jxn, a question of federal law must arise in P’s affirmative claim
Can have state law in addition to federal if the FQ is:
i) Actually in dispute +ii) Demands federal judges expertise and ought to be resolved uniformly +iii) Not so commonly present in state law actions to trample their jurisdiction
Diversity jurisdiction
Action between citizens of different states (need complete diversity) + amount in controversy is greater than $75k
Diversity Jxn for class actions
Class actions where more than 100 persons and $5M, Diversity need only be “minimal” (a single P diverse from a single D)
Determining citizenship
i) Human begins = only a citizen of 1 place at a time, state where resides and intends to remain indefinitelyii) Corporations = could be citizen of 2 places, citizen of state incorporated and state in which it maintains its principal place of business (nerve center)iii) Unincorporated associations (unions, LLCs, partnerships) = citizenship is the citizenship of everymember, could be all 50 states
Aggregation of claims
P brings multiple claims against a single D will be added together to see if amount in controversy reached.Can be totally unrelated, no same transaction or occurence requirement
approach to determining Supplemental jurisdiction
Step 1: Determine relatedness ( same transaction/occurrence)Step 2: Sneaky plaintiffs (Rule 14, 19, 20, 24, P may be trying to slip it in. SJ not available for these claims, need Div or FQ for these)Step 3: is there a good reason for the court to decline anyway?
Reasons a court might decline to exercise supplemental jurisdiction: (4)
i) Involves novel or complex issue of state law;ii) Claim “substantially dominates” over FQ or Div;iii) Anchor claim was dismissed;iv) Other compelling reasons
Home-state defendant rule
D can’t remove if Fed jurisdiction would be grounded only in diversity juris + D is a citizen of state where P filed suit
Removal
D can remove from state to fed court if case could have originally be filed in fed court (subject to Home-state defendant rule). If multiple Ds, removal only allowed if ALL Ds agree to remove.
Timing for removal
D must remove within 30 days of when grounds become apparent.Normally, when D served w/ complaint, can be later: if P amends, then 30 days from that point.Multiple Ds, later service on other Ds gives them, not D1 right to choose (but D1 can join later D’s removal).If removal based on diversity, D must remove within 1 year of filing unless P attempted to thwart removal.
PERSONAL JURISDICTION (PJ) = Power of court over particular person
=Power of court over particular person
Approach for personal jurisdiction
Step 1: Look at state law (could a state court in that state assert PJ over that party?)Step 2: Look at 14th Amend (State law must be constitutional under the Due Process Clause (DP) of the14th Amend)
State law constitutional if authorizes PJ in 1 of 5 circumstances:
a) Residencyb) Consent (by Appearance, Contract, Appointment/agent)c) Serviced) Minimum contactse) Substantial business – High bar, “essentially at home”
Minimum contacts – need all 3:
i) D has established a minimum contact with forum state, established if D causes harm in state, does business, or has an interest in real property in stateii) Claim against D arises from that contact, andiii) PJ wont offend traditional notions of fair play + substantial justice
VENUE =
Region within a particular state where suit can be brought. Dictated by where the bad guy lives and/or where bad thing went down.
Determining Venue
If all D’s reside in same state, then in district where any single D resides.If Ds reside in multiple states, then in location of harm (defined as the district where a substantial part of the events giving rise to the claim occurred)
Transferring venues (3 reasons)
a) Convenience (common) – Could have been filed there in first place + transfer is necessary forconvenience of parties and/or witnessesb) Agreement – If all parties join request to transfer, court does not need to consider PJ or venue (if agree, consenting)c) Interest of justice – If filed in improper venue, court can dismiss or in the interest of justice, transfer where could have been filed originally
Forum non conveniens
If most convenient forum not in the US, court cannot transfer, but can dismiss without prejudice so P can refile in proper country, may not be in US. Same factors considered as in transfer of venue
Contents of Complaint (3)
a) Grounds for subject matter jurisdictionb) Statement of facts that are sufficient to show that P is entitled to reliefc) Demand for judgment and specify the relief sought
Amendments (Rule 15)
Party can amend complaint once as a matter of right: within 21 days of serving it or if an answer or motion to dismiss has already been filed, within 21 days after that service. Party can amend an answer within 21 days of serving itParty can amend with permission: oermission of opposing parties, then can amend; permission of court - will consider reason for delay and prejudice (usually granted)
relation back rule
When adding new claims, amended complain is considered filed on date of original claim IF new claim arises from the same transaction or occurrence as existing claim
Adding new parties: amended complaint will relate back to original filing date if party to be added:
i) Knew of the suit soon enough to not be prejudiced and not later than time permitted for service, +ii) Should have expected to be named as a D, +iii) Was originally left out because of mistake in identity
SERVICE OF PROCESS
Must serve both the complaint + summons, if not, service isn’t proper.Process can be serve either in a manner prescribed by state court in state where federal suit has been filed or where the D will be served; OR in a Manner specified by Fed Rule 4.
Timing for service
Must be served within 90 days of filing complaint.
Who can serve?
Anyone over 18 and not a party can serve.
Options for service under Rule 4
(1) Deliver to D himself (through 3rd party);(2) Leave at D’s usual abode with a person of suitable age and discretion residing there;(3) Serve D’s registered agent; or(4) Mail with letter requesting D waive in-person service (if D declines to waive, he becomes responsible for cost of personal service)
Responding to complaint
Answer = D admits or denies P’s allegations and lists defenses he might have. For each allegation, D should specifically admit or deny. Failure to deny is deemed admitted.Common defenses include statute of limitations, statute of frauds, assumption of risk.
Defenses that are not waived/forfeited:
Failure to state a claim upon which relief should begranted; failure to join necessary party; and lack of SMJ
Motion for more definite statement
Court will order pleading to be clarified if so vague thatresponding party cannot reasonably prepare a response
Motion to strike
Court can (on own or motion) order material stricken if complaint/answer containsredundant, immaterial or scandalous stuff
Motion to dismiss
Seeks dismissal, can be filed by any defending party
Timing of responses/answers
Initial response (answer or pre-answer motion): if D was actually served with process, then 21 days to respond; if Service of process waived, then 60 days to respond.If D responds with 1 of above motions and its denied, then D must file answer within 14 days of denial.
Preliminary injunction (PI)
Need notice to adverse party and:a) Likelihood of success on the merits +b) Irreparable harm (ongoing / imminent harm, can’t be undone later) +c) Balance of hardships (is harm to P if no injunction greater than harm to D if granted?) +d) Public interest +e) Payment of security
Temporary restraining order (TRO)
a) Similar to a PI – Same 5 part test, but:b) TRO can be ex parte – must show tried to notify opposing party, was unable to, and needs a TRO toavoid immediate irreparable harmc) TROs expire 14 days after issuance; can be extended for 14 days upon good cause shown
Multiple claims brought by 1 P and 1 D (Rule 18)
P can bring all claims in 1 lawsuit, regardless of relatedness of claims.Not required to bring every claim but permitted to;If related to claim in suit, must bring, or likely precluded
Permissive counterclaim
Claim does not arise out of the same transaction or occurrence underlying P’s claims against D. D may file a permissive counterclaim but not required to do so.
Compulsory counterclaim
Claim does arise out of same transaction or occurrence underlying P’s claim against D. D must file or forfeit.
Cross claims (Rule 13(g))
Filed by party against co-party (D1 v. D2)a) Allowed only if arise from same transaction or occurrence underlying one of P’s claimsb) Once a related cross is filed, this is the anchor claim. Can then file unrelated cross claims.c) Co-D can counterclaim the cross. Compulsory/permissive rules apply, does not have to be related.
Impleader claims (Rule 14)
D brings against person not already a party.a) Must allege 3rd party is responsible for some / all of liability (contribution or indemnity)b) D has right to implead if within 14 days of serving an answer, otherwise needs permission from courtc) After impleaded, 3rd person made party may bring own claims against others and implead others. Original P can also file claim against 3rd party (impleaded D) if it relates to one of P’s original claims.
Permissive joinder (Rule 20)
Multiple P’s can join 1 suit or multiple D’s can be sued in 1 suit, as long as:a) Joined parties claim relief (if Ps) or face liability (if Ds) that arises out of the same transactions or occurrence; +b) There will arise questions of law/fact common to joined parties
Mandatory joinder (Rule 19)
could be forced to add a party to the suita) Step 1: Is the absent party necessary?b) Step 2: If missing party is necessary, can she be joined? (is there still PJ/SMJ?)c) Step 3: If cannot be joined, are they indispensible?
Necessary party
= Has an interest that might be impaired if left out; complete relief cannot be issued in the party’s absence; or if current parties would be subject to inconsistent / duplicative liability
Determining if a party is indispensible
Court will consider extent of prejudice to missing party; can prejudice be lessened by shaping relief in a certain way; and if case is dismissed, whether P can find relief in another forum
Class actions (Rule 23), requirements (4)
i) Numerosity: So many claimants that joinder is impracticalii) Commonality: Questions of law or fact common to classiii) Typicality: Claims are typical of class members ensuring the rep will have an incentive to litigate in ways to protect classiv) Representativeness: Parties will fairly and adequately protect the interests of the class
a case is proper for resolution via class action if:
i) Separate actions would create risk of inconsistent judgments or judgments would impair nonparties from protecting interestsii) Where party opposing has acted in ways generally applicable to the class (not likely to work if seeking $$)iii) Court finds that common questions of law or fact predominate over individualized questions, and a class action is superior to other methods for fair/efficient result
Interpleader claims (Rule 22)
Have the other 2 guys sue each other.Used when party fears it’ll face multiple/inconsistent liabilities (ex: wife/ex-wife fighting over insuranceproceeds, insurance co-files interpleader because if pays 1, other will sue)
Intervention (Rule 24)
Non-party is interested, but has not been joined.Could be “of right” or “permissive”
Intervention of right
Must be permitted to intervene upon timely application when:i) Claims an interest relating to subject matter of the action, andii) Without intervention, risk they might not be able to protect that interest
Permissive intervention:
Upon timely application and at court’s discretion, may intervene with a claim or defense that shares with the main action a common question of law or fact
Mandatory disclosures (Rule 26a)
What you get without asking, includes:a) Initial disclosuresb) Expert disclosurec) Pretrial disclosures
Initial disclosures
Within 14 days after a Rule 26 conference, must provide:i) All other parties the name/contact info of any witness that a party may use to support a claim or defense;ii) Copies (or descriptions of) of documents, elec stored info (ESI), and tangible objects that may use to support claim or defense;iii) Computation of damages sought and supporting docs;iv) Copies of insurance agreement that may require them to pay
Expert disclosure
At least 90 days before trial, if planning to rely on expert testimony, must disclosure name/contact info of expert and their final report which must include qualifications, opinion, and info relied on by expert
Pretrial disclosures
At least 30 days before trial, must provide:i) List of witnesses she expects to call;ii) Witnesses she may call if the need arises;iii) List of witnesses whose testimony will be given through deposition or transcript;iv) List of docs or physical evidence she expects to present
Scope of discovery (Rule 26b)
What you get if you ask for it, dictated by:a) Relevance: any nonprivileged matter that is relevant to any claim or defense and proportional to the needs of the case, regardless of admissibilityb) Work productc) Privilege: not discoverabled) Undue burdene) Experts (opinion of testifying experts, compensation, data, assumptions made)
Work product
document or tangible object created by party or attorney in anticipation of litigation (post incident description of events)Exceptions:(1) Party can always obtain statement it has made(2) Can get WP if party has substantial need and can’t get it without substantial hardship
for discovery purposes, Undue burden exists in the following circumstances:
i) Discovery is unreasonably cumulative or can be obtained from less burdensome source or in lessburdensome wayii) Party has had ample opportunity to obtain info themselvesiii) Burden or expense of proposed discovery outweighs its benefits, considering nature of evidence, amount in controversy, and parties’ resources
Methods for discovery– How to get something you’re allowed to get
a) Interrogatoriesb) Requests for admissionc) Requests for production of docs, tangible items, or access to evidenced) Requests for mental or physical examinatione) Depositionsf) Subpoenas
Interrogatories (Rule 33)
Questions submitted in writing to other partyi) Up to 25 Qsii) Can seek facts or contentionsiii) 30 days to respond, must be in writing and objections stated with specificity
Requests for admission (Rule 36)
Request to admit truth or facti) If admitted, it’s in there for the trialii) 30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertaintruth but lack info to admit / deny
Requests for production of docs, tangible items, or access to evidence
i) 30 days to respond, may object as outside scope of discoveryii) If documents, responding party must provide them as they are maintained in usual course of business and label, but with electronically stored information (ESI), can provide copies
Requests for mental or physical examination (Rule 35)
Used when party’s mental or physical state is at issuei) Available only upon court order. When ordered, party must submit. Examiner must prepare report detailing exam and it is available to any requesting party
Depositions (Rules 27, 30, 31)
i) May depose up to 10, but can get court order for moreii) May use at a hearing or trial as long as opposing party had reasonable opportunity to be present and follows these rules:(1) Deposition of party/party’s designee can be used for any purpose(2) Deposition of non-party can be used (a) to impeach deponent, or (b) if deponent is unavailable (dead, disappearance) any purpose.
Subpoenas duces tecum
Demand for documents
Subpoenas ad testificatum
Demand for testimony.Person served may object as outside scope of discovery or if it requires person to travel >100 miles from home or work.
Enforcement – What to do if they ignore/don’t play by the rules of discovery
If they sort of comply:i) Motion to compel: ii) SanctionsIf they don’t comply at all: can immediately seek all sanctions above (except order of contempt) – no need for motion to compel.
Motion to compel
made after movant has in good faith attempted to confer with resistor:(1) If granted, movant gets fees/expenses for motion(2) If denied, non-movant may get fees but only if motion was not substantially justified
Sanctions
If after motion to compel, still doesn’t comply:(1) Court order declaring facts established for requesting party(2) Court order prohibiting disobedient party from presenting certain claims or defenses(3) Stay or dismissal of entire action, or(4) Order of contempt
Voluntary Dismissal:
Claimant drops the cases, 3 ways:i) Unilateral dismissal by filing notice any time before D has filed an answer or motion for summary judgmentii) Stipulation of dismissal signed by all parties (settlement)iii) Permission of the court. Generally will grant but if D filed counterclaim, court will not dismiss unless that claim can remain pending for independent adjudication.ORDismissal with or with prejudice on future litigation (if silent, presumed without prejudice in first dismissal, subsequent dismissals are presumed with prejudice)
Involuntary dismissals
= If P fails to prosecute her case or refuses to comply with a court order or any of the FRCPs, D can move to dismiss. Always with prejudice
Default judgments
P properly serves D, D never responses. 2 Steps:a) Entry of default: Clerk must enterb) Entry of a default judgment (clerk enters if a sum certain; or P can request that court do it)
Motion to dismiss
motion filed by defending party seeking dismissal of a claim against him.Must be filed before an answer is filed, within 21 (where process served) or 60 days (where process waived)
Grounds for motion to dismiss (7)
i) Lack of SMJ;ii) Lack of PJ;iii) Improper venue;iv) Insufficient process (constitutional claim);v) Insufficient service of process (statutory claim);vi) Failure to state claim upon which relief can be granted; Court assumes facts are 100% true, must be plausible, not probable (needs some facts)vii) Failure to join indispensible party
Answers which must be included in first response (either motion to dismiss or answer) or they are forfeited: (4)
(1) Lack of PJ;(2) Improper venue;(3) Failure of constitutional process;(4) Failure of statutory process
Answers which must be raised any time before trial ends, or forfeited:
(1) Failure to state a claim upon which relief can be granted;(2) Failure to join an necessary party
Motion for summary judgment, approach
No genuine dispute of material fact, and movant is entitled to judgment as a matter of law.Step 1 – Assess only the arguments advanced by the movant: have they shown non-movant lacks sufficient facts and/or law to prevail on claim/defense in question?Step 2 – Examine non-movant’s response, must bring evidence sufficient for reasonable jury to find in her favor on a claim or defenseCredibility is not taken into account.
Timing for SJ
Motion for SJ must be made any time before 30 days after the close of discovery
Right to Trial by Jury
7th Amendment right to trial by jury in suits at common law, value > $20. Suits at common law, consider both:a) Nature of the remedy (no injunctions)b) Nature of the claim (has to be fairly analogized to a 1791 CL claim)
Demand for Trial by Jury
Any party can exercise. If 10 parties, just 1 has to want it. No later than 14 days after the last pleading directed to the jury-eligible issue is filed, party exercising right must file with court and serve on other parties written demand for jury trial.
Jury composition
6-12 members, chosen thru Voir dire
Voir dire
(1) Challenge for cause: Unlimited, unfit to serve but must articulate unfitness(2) Preemptory challenge: Parties have 3, auto dismissal, no justification needed unless the strikes give rise to gender/race discrimination
Jury verdicts
unless parties stipulate otherwise, must be unanimous
Motion for judgment as a matter of law (JML) (Rule 50a)
During jury trial only, court my enter (on own or upon motion), JML if:i) Party against whom judgment is entered has been fully heard on the issue, andii) Party lacks sufficient evidence to prevail on issue necessary to claim or defense
Renewed motion for judgment as a matter of law (Rule 50b)
If filed losing JML during trial, and then loses at trial, can try again.In ruling on this new motion, the court may:i) Allow the verdict to stand;ii) Enter the opposite verdict; oriii) Order a new trial (even if a motion for new trial was not made)
Timing for RJML
Must be filed within 28 days of judgment (date court declares 1 party the winner)
Timing for Motion for new trial
Must file w/in 28 days of entry of judgment
Grounds for Motion for new trial
i) Against the great weight of the evidence – Court can take into account comparative volume and credibility of evidenceii) Excessive damages – Jury returns verdict that is “grossly excessive” or “shocks the conscience” or can also just choose an appropriate amount and let P choose between accepting that amount and doing a new trial. No remedy for inadequacyiii) Procedural error or misconduct – only if (1) Error or misconduct likely affected result of trial, and (2) Party objected to error when had opportunity to do so (e.g. wrongful exclusion of evidence, ex parte communication with judge, incorrect jury instructions)iv) Newly discovered evidence: could not with reasonable diligence been found before verdict and will likely change results, new evidence can’t be just for impeachment
Motion for relief from judgment (Rule 60b)
asks court to undo the judgment, set aside.Must be made within reasonable time, probably after learning of the grounds. First 3 grounds (mistake, new evidence, fraud) must not be made later than 1 year from final judgment.
Grounds for Motion for relief from judgment (6)
i) Mistake, inadvertence, or excusable neglect;ii) Newly discovered evidence;iii) Fraud, misrepresentation or misconduct by party;iv) Judgment is void: court lacked SMJ or PJ;v) Judgment has been satisfied;vi) Any other reason that justifies relief (catch-all) but can’t be used when above applies
Appellate jurisdiction
Federal circuit court jurisdiction is limited, can hear only appeals seeking review of:i) Final judgmentii) Order pertaining to preliminary injunctive relief (can appeal immediately)iii) Order pertaining to certification of a classiv) Order that has been certified by the district court for appeal; orv) A collateral order
Order that has been certified by the district court for appeal may be immediately appealed if 3 conditions are met:
(a) Order involves a controlling question of law;(b) Issue of law is one on which there is substantial difference of opinion; and(c) Immediate appeal will materially advance the ultimate resolution of the action
A collateral order
Extremely narrow circumstance for appeal. Allowed when 3 conditions meet:(a) Order pertains to matter unrelated to merits (hence “collateral”);(b) Order conclusively decides a particular issue; and(c) Delaying appeal until a final judgment has issued would effectively deny appellate review of the issue
Appellate standard of review
Questions of law: reviewed de novo – no deference to lower court, and addresses legal issue as if it has never been addressedQuestions of fact: will affirm unless clearly erroneous – irrelevant whether the app judges might have decided factual issue or a jury – only inquiry is if “clearly” was wrong. High standard – rarely overturn lower findings of factInherently discretionary questions: when trial courts have discretion, reviewed using deferential abuse of discretion standard
Harmless error rule
May affirm on appeal if there was error but it did not prejudice
Appellate procedure
Appellant must file notice within 30 days of the judgment (or within 30 days of the order that is the subject of the appeal)Exception: Where appeal is on class cert, only have 14 daysIf post trial motion has been filed (renewed motion for JMOL, new trial, relief from judgment) and it is denied, a new 30-day period beings to run from the date of the denial. If granted, judgment is no longer final and no appeal is permissible unless the order can be certified or characterized as a collateral order
Res Judicata
claim preclusion, bars claimants from relitigating a case they already lost.Elements:i) Same parties on the same side of the V (each party positioned on the side of the V they was originally at);ii) Same transaction or occurrence; andiii) Prior suit must have valid final judgment on the merits(1) Final judgment = resolves entire case for D or P(2) Valid = personal jurisdiction over D(3) On the merits = involved inquiry into merits of P’s claim(a) Judgment is not on the merits if it’s a dismissal for lack of PJ, SMJ, or venue(b) Dismissal with prejudice = on the merits
Collateral Estoppel
Issue preclusion, bars relitigation of issues even with different parties. Elements:i) Must have been litigated and determined in prior suitii) Issue must have been Essential to the judgment (Essential = if decided the opposite way would it have changed the result of the case)iii) Prior suit must have ended in a judgment on the meritsiv) Party against whom preclusion is asserted must have had full and fair opportunity, as well as incentive, to litigate the issue in the first suit
ACTUS REUS
= Guilty Act.Voluntary, conscious act that causes an unlawful result; OR Act + volition = legal actNOT: Reflections reflexes), sleepwalking (lack volition)
MENS REA (five types)
= Guilty Mind; categories defined by statutea) Purpose – Conscious objective to bring about resultb) Knowledge – almost absolute certainty of resultc) Intent – Acts intentionally with purpose or knowledged) Willful – Acts purposefully or knowingly, with moral turpitude (similar to intent)e) Recklessness – Aware that conduct creates risk that’s unjustifiable, but ignores and engages anywayf) Criminal negligence – creates an unjustifiable risk without subjective awareness that he is doing so, but a reasonable person would have been aware
MR of Purpose
Conscious objective to bring about result
MR of Intent
Acts intentionally with purpose or knowledge
Criminal negligence
type of MR, creates an unjustifiable risk without subjective awareness that he is doing so, but a reasonable person would have been aware
Specific intent
Requires proof D intended to create specifically prohibited harm, includes purpose or knowledge (“with intent to”)
General intent
Only requires desire to do the proscribed act; includes reckless and negligent states of mind
nullifying intent
Specific: Nullified by honest but unreasonable mistake of fact and voluntary intoxicationGeneral: Nullified by honest and reasonable mistake of fact
Malice (3 ways to prove)
Mens rea element for murder at common law, can be Express or Implied, 3 ways to show:1) Intent to kill (including deadly weapons)2) Intent to inflict serious bodily harm3) Depraved Heart Murder
Express Malice, how to prove (3)
intent to kill another human being.To prove intent to kill, D acted with:i) Purpose to kill;ii) Knowledge that her conduct would kill; oriii) Intent to inflict grievous bodily harm although no intent to kill
Implied Malice
caused death as a result of extreme reckless, or criminal negligent conduct that manifested a wanton disregard for human life
Strict liablity crimes
No mens rea element.Act + Result = Guilt
Transferred intent
D intends to produce criminal result against one V but harms another – intent transfers
Concurrence
Mental state must actuate (set in motion) conduct that produces criminal result
Actual Cause: 3 tests to satisfy
=cause in facta) “But for” – Result would not have occurred but for D’s conductb) Substantial factor – multiple causes/parties responsible but D’s act was a substantial factor in causing criminal resultc) Acceleration – D’s conduct speeds up inevitable death, even if brief
Proximate Cause
Required only when intervening event occurs between D’s actual cause and criminal result.Question is whether intervening event supersedes D’s responsibilitya) If intervening event is foreseeable: will not supersedeb) If unforeseeable: normally will supersede, relieve D of liability and break casual connection to criminal result
Foreseeability for the purposes of prox cause
Foreseeable = negligence rule (take V as you find him, eggshell skull rule). Applies to things that are dependent or responsive to D’s initial cause.Unforeseeable = grossly negligent or reckless conduct that accelerates a death set in motion by D. Generally an independent intervening cause or a mere coincidence.
Criminal Homicide
= unlawful killing of a human being by another.Unlawful= no justification, criminal mens reaHomicide + malice = murder(w/o malice it’s manslaughter)
Intent to inflict serious bodily harm
Conscious desire or substantial certainty that D’s actions will result in V’s injury.Serious/grievous bodily harm = significant but not fatal injury
Deadly weapons doctrine
Intent to kill inferred from D’s use of instrument designed to kill or used in manner likely to kill or inflict grievous bodily harm
Depraved Heart Murder, elements
=unintended kill resulting from extreme risk creation that manifests wanton disregard for human life (e.g. Russian roulette). Unintentional death results from:(a) Reckless or grossly negligent conduct +(b) That creates an extreme risk to others +(c) And demonstrates wanton indifference to human life and conscious disregard of unreasonable risk of death or serious bodily injury
Felony murder
(1) Unintentional killing +(2) Proximately caused +(3) During commission or attempted commission +(4) Of serious or inherently dangerous felony (BARRK, from which malice is inferred).Also, must overcome 3 obstacles to prosecution
serious or inherently dangerous felony
BARRK:(i) Burglary(ii) Arson(iii) Rape(iv) Robbery, and(v) Kidnapping
obstacles for Felony Murder prosecution (3)
1) Right type of felony: listed in statute or independent of killing and inherently dangerous (BARRK)2) Right connection to felony: death is foreseeable outgrowth (just no coincidences)(3) Right time: death resulted from injuries inflicted during commission, attempt, or immediate flight from felony
timeframe of a felony
starts: when D could be convicted of attemptterminates: when D reaches temporary safety
Redline limitation
no cofelon liability if victim or police kill cofelon
Co-felon liability, majority rule
Agency Rule: FM liability limited to killing committed by a hand of co-felon.Exempts liability for killings at hands of non-felons.Some apply to exempt a non-felon kills who kills a non-felon (V aims at felon but kills bystander).
Co-felon liability, CL
Liability attaches to all felons for any homicide during felony, just requires proxy cause of death (e.g. if during a group robbery s/o trips on way to call cops and dies, all felons are responsible)
Exception for Co-felon liability (3)
i) Non-violent felon: min CL rule, exempt if not armed and did not participate/have knowledge of co-felons’ intentii) Deserving Victim, min CL rule: Killing a co-felon)iii) Redline limitation, maj CL: Police or V kills co-felon
1st Degree Murder
Proof that D’s decision to kill was done with both premeditation and deliberation elevates 2nd degree to 1st degree murder (also the required malice must be “intent to kill”)
premeditation and deliberation
Premeditation: D must think about act of killing, CL says it can be immediate, but Modern requires some v brief amt of time (req jury to find some reflection occurred)Deliberation: D must make deliberate choice to kill, requires rational thought (voluntary intoxication or diminished capacity may prevent)
Voluntary manslaughter
= heat of passion killing, intentional killing mitigated by adequate provocation or other circumstances negating malice (intentional killing without malice = manslaughter)
Adequate provocation
(for voluntary manslaughter)Measured objectively, a provocation that would lead a reasonable person to lose self-control and fly into sudden homicidal rage.Mere words not enough (generally)Rage must be hot – can’t have had long time to cool off
Involuntary manslaughter
= unintentional killing resulting from unjustified risk creation (recklessness or gross negligence) that is not sufficiently extreme to rise to level of implied malice.
circumstances for involuntary manslaughter (4)
1) D did not intend to kill or expect conduct to cause death, but death results from unjustified risk creation. Only implied malice if so extreme it indicates a wanton disregard for human life2) Recklessness: subjectively aware of risk and ignores it3) Gross neg: wnaware of risk but reasonable person would have been aware (e.g. mishandling weapons, DUI)4) Misdemeanor manslaughter (min. rule): unintentional killing that occurs during commission/attempt ofmisdemeanor or a non-BARRK felony
Battery
i) D unlawfully applies force (can be indirect, put in motion)ii) D does so intentionally, recklessly, or as a result of crim neg. (general intent crime)iii) Without legal justification/excuse
Aggravated Battery (3)
In most jurisdictions, simple battery (misdemeanor) can be elevated to aggravated battery (felony) when D:i) Causes serious bodily harm;ii) Uses deadly weapon; oriii) Special category of V (child, woman, cop)
defenses for battery (3)
i) Valid consentii) Self-defense and defense of others as long as proportional forceiii) Prevention of crime so long as proportional force
Assault (2 types)
1) Failed attempted battery: D intended to actually batter a V but failed. As long as there’s intent, no defense that V was not aware of assault or that D was not presently able to commit.2) Fear of battery assault: D never intended to actually batter the V, but instead, to put the V in fear of an immediate battery. D must act with threatening conduct intended to cause reasonable apprehension of imminent harm to V (V must be aware of threat)
aggravated felony assault
Can rise to aggravated felony assault when:i) D commits with dangerous weaponii) D acts with intent to rape or murder Viii) V is specially protected by statute
False Imprisonment
Confinement of one person by another when it is intentional, against the law, and V is fully confined.Elements:(1) intent to confine a person within fixed boundaries;(2) act that directly or indirectly results in such a confinement of the other; and(3) the other is conscious of the confinement or is harmed by it
Kidnapping: CL, modern, maj
Common Law: Unlawful, Restraint of a person’s liberty, By force or show of force, So as to send V into another countryModern: V can just be taken to another location or concealedMajority: Some movement of V (asportation), restraint not enough
rape, CL
i) Carnal knowledge of a woman (vaginal penetration of V by D) not wife,ii) against her will, (without consent)iii) by force or threat of force (“NO” was not enough)
rape, Modern law
No implied resistance requirement: focuses on objective lack of consent.i) reasonable person in D’s situation would have known V’s lack of consent, that establishes rapeii) Penetration satisfies “force” requirementiii) Mistake of fact can be defense b/c because no requirement to prove extrinsic force, but mistake mustbe both honest and reasonable
Statutory rape
if V is under statutorily prescribed age of consent (usually 16), intercourse = rape, even if V expressed her consent or D mistakenly believed she was of legal age
Theft crimes (8)
Key = intent to permanently deprive (steal)a) Larcenyb) Embezzlementc) Robberyd) Theft by false pretensese) Larceny by trickf) Extortion g) Receiving stolen property h) Forgery
Laceny
=unlawful taking of property in someone else’s possession with intent to steal.CL: (i) Trespassory taking (ii) And carrying away (iii) Of tangible personal property (iv) Of another (v) With intent to permanently deprive or steal (specific intent)No intent if you think property is yours, no matter how unreasonable.
doctrine of continuing trespass
If D takes property, but at the time intends it to be temporary, and later decides to permanently deprivethe owner of the property, doctrine of continuing trespass establishes concurrence between unlawfultaking and requisite intent to steal
Embezzlement
=unlawful conversion of property already in D’s possession with intent to steal.Need some action toward property that seriouslyinterferes with owner’s rights, i.e. selling, consuming, damaging, claiming title to it.Specific fraudulent intent to steal can be negated by honest belief that D has right to property
Robbery
= larceny accomplished by force or threat of force.i) Trespassory taking of personal property with intent to stealii) Taking from V’s person or presence (area w/in their control)iii) Force or threat of force that places V in actual fear at time of taking required (pickpocket isn’t robbery)
Theft by false pretenses
=obtaining title to property owned by someone else through fraud.a) False representation of material fact by Db) Which causes V to pass title to his property (need reliancec) To Dd) Who knows it is falsee) And intends thereby to defraud
Larceny by trick
=obtaining possession (not title) through fraud, with intent to steal.a) D tricks possessor into giving possession through fraudulent misrepresentation (need reliance)b) Fake check = Larceny by trick, not false pretenses, because title does not pass until check clears, butmost juris. have specific crime for this
Extortion
=blackmail = obtaining property of another by threat of future harm to V or his property.If it’s present harm, it’s probably robbery, not extortion
Receiving stolen property
i) Receipt of stolen property,ii) known to be stoleniii) with the intent to permanentlydeprive owner (common law misdemeanor)
Forgery
Fraudulently making false writing with apparent legal significance with intent to make wrongful use of doc.Alteration must be material (change meaning or effect of doc) to qualify.
Burglary
a) Breaking (CL: req some force; modern: slight enlargement of opening; entry by fraud, deception, threat is adequate)b) and Entering (mod: can use tool)c) the Dwelling house of another (mod: most structures)d) At night (mod: not req)e) With intent to commit felony therein (need simultaneous felonious intent)
Arson
Malicious act that creates considerable risk of burning of dwelling of another.Malice established by intent or result of extreme recklessnessMod: need not be dwelling of anotherCharring counts, but not blackening
Inchoate crimes (3)
All require specific intent to commit target offense.1) Solicitation2) Attempt3) Conspiracy
Solicitation
crime of trying to get someone to commit your crime. Key = communication.Enticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit target offense (CL: had to be a felony; Mod: any offense)Intent is for solicitee to perform criminal actsOffense is complete at time solicitation is made
Merger (crim)
Inchoate crimes (attempt, solicitation) merge if they actually happen, but not conspiracy.Attempted battery assault does not merge w/assault if battery actually occurs.
Attempt
crime of “almost” committing a crime.Key = evidence that D crossed line from preparation toperpetration.Two elements:i) Specific intent or purpose to bring about criminal resultii) Significant overt act in furtherance of that intent that proves D went past preparation and began perpetrationMPC: Acts prior are sufficient as long as “substantial step” toward commission that indicates a purpose to complete attempt has been made (CL required last act before commission)
tests for determining if attempt occurred (2)
Proximity test (many Jurisdictions): How close in time and physical distance D was to time and place target crime was to be committedEquivocality test (some use): D’s conduct unequivocally indicates he was going to complete target offense
Defenses for Attempt
i) Abandonment>CL: No defense once attempt complete>MPC: Voluntary, complete abandonment is defenseii) Legal impossibility: if it’s actually not a crimeNot s defense:iii) Factual impossibility: D would have committed offense had facts been as she believed them to be; D is guilty of attempt
Conspiracy
crime of planning to commit crime with someone else. Key = evidence D crossed line from thinking about crime to collective preparation to commit crime.Rule: Agreement to create unlawful criminal combination between 2 or more persons with intent toagree and specific intent (purpose) to commit unlawful act (mod: Overt act requirement, but can be minimal)
Pinkerton rule
Co-conspirator liability.Each co-conspirator is liable for crimes of all other co-cons where crimes were both:i) A foreseeable outgrowth of conspiracy; andii) Committed in furtherance of conspiratorial goal
Unilateral conspiracy
Under MPC, permits conviction of single party when other feigned agreement or is acquitted.(CL requires 2 conspirators, acquittal of 1 co-con required acquittal of other)
Defenses to conspiracy (2)
Withdrawal (CL+MPC): complete and voluntary withdrawal, with notice to all conspirators, severs liability for future crimes, but no defense to conspiracy itself.Renunciation (MPC only): withdrawal + affirmative act to thwart conspiracy can eliminate liability for conspiracy
Accomplice liablity
A way to link accomplice to a crime committed by someone else. Accomplice charged as if he were principal, for crimes purposefully facilitated and all others that are reasonably foreseeable outgrowths (obj).Rule: criminally liable as an accomplice if D does some act (or omission w/duty to act) that facilitates the principal’s commission of crime (or attempt), including encouragement with purpose of bringing about commission of crime.
Defenses for Accomplice liablity
CL: Accomplice can withdraw by giving principal timely notice and nullifying effect of prior facilitationMPC: To remove accomplice liability, must either:(1) Render prior assistance to perpetrator completely ineffective,(2) Provide cops w/timely warning of plan, or(3) Make proper effort to prevent perp from committing
Crim Defenses
i) Insanity (incl. intoxication)ii) Duressiii) Self defenseiv) Defense of othersv) Defense of propertyvi) Necessity
Insanity, crim (4 tests)
Excuse of lack of mental responsibility.Rule: If D was legally insane at time of his criminal act, no crim liability will be imposed. 4 different tests:1) M’Naghten test: impaired reasoning2) Irresistible impulse test – unable to control conduct due to mental disease)3) MPC test: reasoning (wrongfulness) OR conduct control4) Durham (or NH) rule: unlawful act was product of mental disease/defect (would not have been committed “but for” the defect)
M’Naghten test
Focuses on reasoning abilityD relieved of crim resp. upon proof that at time of commission:(1) D suffered from severe mental disease or defect, and(2) As a result, unable to know either the Nature and quality of his act; OR that what he was doing was wrong (i.e. delusional self-defense)
MPC test for Insanity
D not responsible for criminal conduct if, at time of such conduct and as a result of mental disease or defect, he lacked substantial capacity to appreciate criminality (wrongfulness) of his conduct or to conform conduct to the requirements of law
Intoxication defenses
Involuntary intoxication (alcohol or narcotic): defense when general or specific intent is req, so long as it negates mens reaVoluntary intoxication: may be a valid defense for a spec intent crime if it negates requisite mental state (i.e. purposeful, knowing). Not a defense to general intentcrimes and won’t negate recklessness, negligence, or strict liability.
Duress
excuses crim conduct where D reasonably believes that only way to avoid unlawful threat of great bodily harm or imminent death is to engage in unlawful conductNot a defense to murder, unless to excuse underlying felony in Felony Murder
Self Defense (justification defense)
Honest and reasonable judgment that it is necessary to use force to defend against an unlawful, imminent threat of bodily harmElements:a) D is V of unlawful threat (not initial aggressor)b) D is in imminent danger of unlawful bodily harm (call cops otherwise)c) D uses proportional force (no more than reasonably necessary) to prevent imminent harm
Homicidal self-defense (deadly force)
Permitted only in response to imminent threat of death or grievous bodily harmUnclean hands:CL: aggressor could regain right to self-defense only by complete withdrawal perceived by the 1st VModern: 1st aggressor has right to self-defense if the 1st V responds to the aggression with excessive force
Retreat rule
CL: V of unlawful violence had duty to retreat before use of deadly force.Even when retreat still required, not required in D’s own home, car, or office and not required if retreat not feasible.
Defense of others
Justified when necessary to defend 3rd party who is facing unlawful imminent threat of bodily harm.Deadly force only justified when threat of death or grievous bodily harm.Majority: reasonableness of D’s belief that 3rd person was being unlawfully attacked. If reasonable butmistaken, D can still claim defense of othersMinority: D steps into shoes of V attacked—if 3rd party was first aggressor or failed to retreat when required by law, D has no defense
Defense of Property
Reasonable, non-deadly force is justified in defending one’s property from theft, destruction or trespass where D has reasonable belief property is in immediate danger + No greater force than necessary is used.
Necessity
Justifies commission of what is normally a crime when:(1) Necessary to avoid immediate threat of greater harm to persons or property +(2) No reasonable alternative to breaking law to avoid greater harm +3) D not responsible for causing the harmCL: Necessity never defense to murder, unless raised as defense to underlying felony for Felony MurderMPC: Can raise for all charges, even homicide, which might result in acquittal if D kills 1 person to save lots of lives
4th Amend
protects from unreasonable searches and seizures and requires warrants to be based on probable cause
5th Amend
prohibits coerced confessions and unreliable identifications and provides privilege against self-incrimination
6th Amend
provides a person formally accused of a crime right to counsel in all critical stages of adversarial process and provides right to confront testimonial evidence
Approach to Crim Pro Qs
a) Was there government action?b) If so, did it trigger a constitutional right (i.e. was it a search or seizure)?c) If so, did the government violate the constitutional right (i.e. was search or seizure unreasonable)?d) If so, is D entitled to remedy of exclusion?
Terry Stop
brief investigatory seizure.Different from arrest in duration + purpose.Permissible duration is time necessary to confirm a reasonable suspicion crime has occurred, providing Probable Cause (PC).If suspicion is denied, seizure must stop
Seizure of persons
When, due to gov’t action, a reasonable person in D’s position would not feel free to leave or terminate police encounter. Requires Police use of physical force or showing of authority followed by submission (e.g. terry stop)
Seizure of Property
police take action that results in a meaningful interference with a possessory interest
Police Search
Any gov’t investigatory trespass against a 4th amend interest OR intrusion into a reasonable expectation of privacy (REP)
Investigatory trespass
intrusion upon target’s person, home (including curtilage), papers, or effects for purpose of finding or gathering evidence of a crime. Need investigatory motive.
Reasonable Expectation of Privacy (REP)
requires that:i) D manifests subjective expectation of privacy by making effort to shield thing or activity from public +ii) Expectation is objectionably reasonable because it is an expectation society is willing to recognizeNot REP if objects held out to public (i.e. handwriting, voice, bank records, email headings, open fields, discarded property)
Compliance with 4th Amendment
search or seizure must be reasonable.Requires warrant, reasonable suspicion, or probable cause. (WRSPC)
Warrant
creates presumption of reasonableness, D bears burden of rebutting this presumption by proving:i) Warrant not based on valid probable cause; orii) Magistrate not neutral or detached; oriii) Warrant failed to describe with particularity thing to be seized or place to be searchedAny search or seizure without a warrant presumptively unreasonable, gov’t bears burden of proving itfalls within an established exception
Probable cause (PC)
=“fair probability”, facts and circumstances that would make a reasonable person conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular locationi) Always required for full-scale intrusion (search to find evidence or an arrest)ii) Can be based on tip
tips from anonymous/confidential informants
totality of circumstances test used for reliability of tips, considers:(1) Veracity of informant (normally predictive info)(2) Basis of knowledge (how does informant know)(3) Corroberation: Police investigation that validates accuracy of informant’s predictions
Reasonable suspicion (RS)
a belief based upon articulable information more than a mere hunch used by a reasonable person or cop that suspect has or is about to engage in illegal or criminal activity.RS will justify only a brief investigatory seizure (TerryStop) or cursory protective search (Terry Frisk)
Applying 4th amendment to Arrests
Probable cause always required.Warrant not required to arrest in public, but is required to arrest individual in own home unless exigent circumstances
Applying 4th amendment to Terry stops
Reasonable Suspicion that crime is in progress or has just been committed justifies a brief investigatory seizure (terry stop) to confirm or rule out suspicionEstablished by:(1) Police observations, eye-witness reports(2) Flight from police in high crime areas(3) Informant tip + corroborationii) Scope = time required, acting in due diligence to confirm or deny suspicion
Applying 4th amendment to Seizures of property
warrant (based on PC) presumptively, not always required to justify seizure of propertyNo warrant if in plain view, requires:(1) Police lawful vantage point to observe item(2) immediately apparent that item is contraband(3) Officer has lawful access to point of seizure
Applying 4th amendment to searches
Searches pursuant to warrant: warrant gives police authority to search only named places or people (incl plain view rule), and right to detain occupants during search (but not right to search them)Warrantless searches: unreasonable UNLESS falls into an established exception (8 or them)
Exceptions ot warrantless searches (8)
1) Search incident to a lawful arrest (SITLA)2) Automobile exception3) Special needs doctrine4) Consent) Hot pursuit ) Exigent circumstances7) Terry search (frisk)8) Admin Searches
Search incident to a lawful arrest (SITLA)
upon a lawful arrest (based on PC) can automaticallysearch the arrestee + area within his immediate control (wingspan or lunging distance)(1) Must be contemporaneous(2) If arrested at home, limited to area within lunging distance and no authority to search entire house, unless RS, other people home, may put police in risk, can conduct cursory protective sweep (Terry Sweep) but ONLY where people could fit(3) If arrested in / right out of car: can automatically search person. If genuine access to interior of car after arrest, can search interior car and all containers within interior, but if not, can only check car if reasonable belief evidence related to crime of arrest in car
Automobile exception
can search car as long as have PC:(a) Justified by inherent mobility and reduced expectation of privacy(b) Applies to all containers within vehicle where item could be found for which probable cause exists(c) Can also impound car and search it later
Special needs doctrine
Can use checkpoints to conduct brief seizures / limited searches without individualized suspicion or warrant because of public safety danger that cannot beaddressed by complying with warrant requirements(1) Primary purpose must be need to search or seize to protect public from immediate danger(2) Must be: based on fixed formula that deprives individual officers of discretion to select subjects, narrowly tailored in scope, to address the specific threat, and conducted in location and manner that minimizes citizen anxiety(3) Can seize contraband that comes into plain view even if unrelated to public safety concern(4) Border exception: Custom official may, with no suspicion or cause, as an incident of national sovereignty, stop vehicles at permanent checkpoints located at or near border, and conduct routine searches of people and property
Consent
if individual waives right to privacy by consenting to search, search is reasonable even if police have no suspicion(a) Must be voluntary (totality of circumstances): invalid if obtained by asserting fake warrant, fraudulently, under duress, or pursuant to unlawful police threat(b) If consent obtained followed unlawful seizure, it’s tainted, and consent and any evidence invalid(c) Third party consent
Hot pursuit
may enter and search private dwelling while in hot pursuit of the fleeing suspect.May execute warrantless arrest of suspect on premises and seize any contraband observed in plain view pursuant to hot pursuit
Exigent circumstances
warrantless search permissible when waiting to obtain a warrant will result in imminent destruction of evidence, escape of accused, or risk to police or others in thearea:(1) Justifies warrantless search and seizure of evidence in or on a suspect’s body if PC to believe the nature of evidence renders it easily destroyed or likely to disappear before warrant can be obtained. Needs to be reasonable and not shock conscious.(2) Justifies warrantless crime scene search to seek other Vs, remaining killers, or violent felon
Terry search (frisk)
Cursory, protective search for weapons or some other instrumentality that creates imminent danger to officer or others in close proximity(1) Justified only by RS that suspect is armed and dangerous = protective search, not search for evidence(2) Limited to suspect’s outer clothing to confirm or deny suspect is armed(3) If frisk / pat down results in officer feeling something he knows immediately is a weapon or other contraband, then officer may seize it without a warrant pursuant to “plain touch”(variant of plain view). If knows it’s not a weapon and has to manipulate it to establish PC to seize it, that exceeds scope and is unreasonable(4) Cars: brief cursory look in car where police have RS that person stopped will have immediate access to weapon after getting back in car(5) Home: cursory sweep of home on RS that others may be present and endanger officer
Admin Searches
conducted for non-criminal purpose and justify lower standard of cause:(1) Agency compliance inspection, justified by RS(2) Border searches – customs and immigration officers may conduct routine searches of people and property crossing borders in US with no individual suspicion. Vehicles at border crossing may be stopped without cause for questions, but RS required to fully search car
4th Amend Remedies, requirements
Exlusion of evidence, 3 requirements:(1) Unreasonable search/seizure must trigger exclusion(2) D seeking exclusion) must have standing(3) Facts don’t support an exception to exclusionary rule.If met, Exclusionary Rule prohibits govt from introducing evidence obtained as a direct or derivative result of an unreasonable search and seizure
Fruit of the Poisonous Tree Doctrine
Any additional evidence derived from initial illegality,including oral statements and physical objects, fall within the scope of exclusionary rule and are tainted fruit of poisonous tree, unless an exception applies
Exceptions to Fruit of the Poisonous Tree Doctrine (3), and places where not applicable (2)
(i) Independent source(ii) Inevitable discovery: thru a diff independent source(iii) AttenuationExclusionary rule does not apply:1) to use of evidence to impeach D’s testimony2) Good Faith Exception: when police act in good faith on a warrant later ruled invalid, evidence not excluded
Attenuation, factors (4)
Exception to Fruit of the Poisonous Tree Doctrine, when evidence so distant from initial illegality that taint of poison is purged and evidence is admissible.Factors:1. Different location2. Passage of time3. Different officers4. Valid Miranda waiver
Standing for 4th Amend
must show that unreasonable search or seizure intruded on his personal constitutional rights. Cannot assert someone else’s constitutional rightsEstablish standing by:(a) Ownership or possessory interest in place searched or item seized(b) For cars: owner or person in possession has standing to seek exclusion for unreasonable search of car(c) Overnight guest at someone else’s house
Voluntariness Approach, factors
Statements obtained by actual coercion are involuntary and inadmissible for any purpose.Triggered by govt conduct that overbears free will of suspect. Factors of coercion—totality of circumstances:(1) D’s age, health, education, intelligence, gender, cultural background;(2) Location, duration, and physical conditions of interrogation(3) Number and demeanor of police officers, suspect’s experience with criminal justice system;(4) Deception and trickery by police
6th Amend Right to counsel approach
offense-specific—triggered by initiation of formal adversarial process (formal charges, indictment, arraignment, or preliminary hearing) during all critical stages (deliberate elicitation of statements, physical lineup, preliminary hearing, and trial) of adversarial process.Any statement obtained by police from D related to crime he is formally charged with is inadmissible unless:i) His lawyer was present; ORii) He executed a knowing and voluntary waiver
5th Amendment Privilege against self-incrimination
no person shall be compelled in a criminal caseto be a witness against self, Absolute privilege to refuse to testify when:i) D has a real and substantial fear that testimony will result in self-incrimination or contribute to his conviction; ii) D asserts privilege by refusing to testifyWaiver: mere act of answering police or govt questionsImmunity can eliminate risk of self-incrimination
Immunity to eliminate risk of self-incrimination, types (2)
i) Use/Testimonial Immunity: prohibits use of witness’s testimony or any evidence derived from that testimony against witness. Can still prosecute witness so long as evidence has no connection to testimonyii) Transactional Immunity: prohibits ANY future prosecution of witness for transaction that is the subject of testimony
Miranda rule
Statements obtained from custodial interrogation are inadmissible in prosecution’s case-in-chief in absence of Miranda warnings and valid waiver/Triggered by Custody + Interrogation1) Custody: formal arrest or situation where a reasonable person in suspect’s position would believe their freedom has been deprivedii) Interrogation: direct questioning or words or actions a reasonable officer would anticipate were likely to result in eliciting an incriminating response
Waiver of Miranda rights
Spontaneous or volunteered statements do not implicate Miranda (even if made while in custody) bc not a product of questions.If suspect did not make a knowing and voluntary waiver, statements violate Miranda. Waiver must show that suspect understood his rights (orally or written). Waiver cannot be presumed from silence
effects of invoking Miranda rights, reinitiating questiong
If suspect makes an unequivocal request for an attorney or states she wishes to remain silent (request can be made at any point during interrogation): all interrogation must stop.Re-initiating questioning after right invoked:(1) Invoked right to remain silent: police must allow for significant time to elapse and then obtain new Miranda waiver(2) Invoked right to counsel: may not resume questioning until counsel is present, OR, D re-initiates contact with police and executes a new waiver, OR 2 weeks after D is returned to his normal environment and police get new waiver
Due process stadard for identifications
applies to all types of identifications at all stages of investigatory and prosecutorial process/Rule: If a D can prove that an identification procedure used by government was so unnecessarily suggestive that it created an irreparable risk of mistaken identification: violates due process, cannot use ID at trial.Test: reliability, D must prove both:(1) procedures used were unnecessary suggestive +(2) suggestiveness produced an unreliable ID (considering various factors)note: when ID is excluded for DP violation, a subsequent in-court ID by same witness will almost always be excluded as fruit of poisonous tree.
Factors for suggestiveness of identifications
(a) Opportunity to view criminal at scene;(b) Witness’s degree of attention;(c) Accuracy of witness’s description;(d) Degree of certainty of witness; and(e) Time interval between crime and identification (the longer the interval, the less reliable)
6th Amend right to counsel violation for identifications
Out-of-court corporeal identification (human, in person) is a critical stage in adversarial process and D cannot be subject to it without counsel present or a knowing andvoluntary waiver of counsel.a) Only applies to corporeal identifications and only after initiation of formal adversarial processb) Consequences of violation: results are per se inadmissible at trial, and witness is prohibited from making a subsequent in-court ID unless prosecution can prove by clear and convincing evidence that in-court ID is independent from out of court ID
Grand-Jury Indictment
=a written accusation stating charges against D issued by a grand jury after it reviews prosecution’s evidence.A grand jury is not an adversarial hearing, it is an investigatory tool. Therefore:i) D has no right to be present and no right to assistance of counselii) Prosecution presents evidence without confrontation processiii) Prosecution has no obligation to present clearly exculpatory evidence to grand juryiv) No Miranda warning needed
Bail Hearing
D is entitled to individualized hearing to determine whether bail should be granted or denied. Noconstitutional right to bail, but if appropriate, it may not be excessive.
Plea Bargaining
D may be convicted based only upon his plea. Plea must be voluntary and intelligent (D must be informed of the general nature of offense he is pleading guilty to)
Right to a Speedy Trial, remedy, test
guaranteed by the 6th Amend. Clock begins running once D is accused by formal charge or is arrested.Remedy for violation: only dismissal with prejudice (can never try case)Test for violation:i) Length of delay – generally more than 1 year triggers inquiry, but defense-requested delays, including motions, are excluded from calculationii) Reason for delay – a “good” reason is one that prosecution has no control over, as opposed toone prosecution could have avoided by due diligenceiii) Demand for speedy trial – not essential, but if D failed to make demand, normally indicates D did not consider delay prejudicialiv) delay normally must result in prejudice to D (i.e. degradation of evidence) to be unreasonable
Pretrial discovery rights (crim)
Violates due process for prosecution to fail to disclose to D evidence both favorable and materialRemedy: If prosecution fails to disclose favorable evidence, D is entitled to a new trial (or sentencing) if the evidence was also material (i.e. would have created reasonable doubt/a reasonable probability of a different outcome if disclosed)What must be disclosed:i) If D makes a discovery request: any evidence that would tend to help defenseii) If D does not make a discovery request: only evidence that is clearly exculpatoryProsecution not required to disclose to D before plea bargaining or entering into a plea agreement
Right to Counsel at Trial
D may not be imprisoned for any offense unless he was represented by counsel or waived that rightRight attaches to all critical stages of proceedings that affect D’s right to a fair trial (trial, preliminary hearing,corporeal identifications, police questioning)i) Triggered by actual result of case, not risk: any trial that results in confinement triggers requirement for D to have counselii) The right to counsel means right to effective counsel.
Right to Jury Trial
attaches if D faces a potential sentence of more than 6 months’ confinement (triggered by risk/potential results):a) right to jury selection from a fair cross section of community (ethnic + gender demographic)b) Petit Jury (actual jury) no requirement to be a fair cross-section
Confrontation Clause (crim)
6th Amend provides D with a right to confront witnesses and evidence presented against hima) Trigger: testimonial evidence – statements made in a situation where witness would expect it to be used as evidence (i.e speaking to an investigating officer re past events, but not a 911 call)b) Satisfied by witness testimony provided under oath if D has an opportunity to cross-examine (need not actually cross examine)
Double Jeopardy
must establish D had been in jeopardy for same offense by same sovereign. Being previously charged is insufficient. Jeopardy must have attached.:i) Same offense: two crimes occurring out of same transaction are considered same offense, unless each charge requires proof of a separate criminal impulse (i.e. multiple Vs), or of a separate factual elementii) Separate Sovereignties: dual prosecution by separate sovereigns is fine (e.g. different states, fed + state)
right to effective counsel
Courts presume that legal counsel is effective,very difficult to prevail on an ineffective assistance of counsel claim. D seeking a new trial based on a claim of Ineffective Assistance of Counsel must prove both:i) counsel was ineffective (below minimum standard of lawyer conduct), andii) Had the lawyer been effective, it would have created a reasonable probability outcome would have been different (reasonable doubt)
when does Jeopardy attach (for DJ purposes)
In a non-jury trial: when first witness is sworn and court beings to hear evidenceIn a jury trial: when jury is impaneled and sworn
def of “goods” for UCC purposes
any movable item. Does not include intangibles (goodwill, IP), money, legal claims, services, or real property
What law applies to hybrid cases (involving both sale of goods + service contracts)
determined by predominate purpose of the transaction (Majority rule)i) Contract language – Was K described as a goods K?ii) Nature of supplier’s businessiii) Value of goods v. services (relative)Even if UCC applies, common law still applies unless UCC contradicts it
elements of an offer
a) Outward manifestation (oral, written, or via conduct) +b) Signal that acceptance will conclude the deal (power of acceptance)
rule for commericial advertisements
American rule: Ads, catalogs, price lists are invitations for offers, since responses may exceed available supply of goods or servicesException: Language that identifies who gets limited supply of goods even if there is an excess demand (i.e. first come, first served, or first 10 customers)
Reward Offers
Considered offers, b/c they are communications that promise $ in exchange for performance of specific tasksi) Self-limiting – Task rewarded can be performed only once ($100 for dog)ii) Open-field – Many parties ($100 for med tests)Exception: Language limiting how many buyers can get it
Auctions (K)
Viewed as inviting offers; responding bids are offersException: “Without reserve” = offer to sell to highest bidder
Ways to terminate power of acceptance (4)
1) Lapse2) Death or incapacity3) Revocation of offer by Offeror4) Termination by Offeree’s Rejection
Lapse
happens after time stated in offer or after a reasonable time. Reasonable time determined by:i) Subject matter and market conditions; andii) Degree of urgency and means of transmission
Indirect revocation
requirements:(i) Offeror takes action that is inconsistent with the intent to go through with the offer and(ii) Offeree learns of such action from reliable source
Ways to prevent revocation (2)
1) Option contract2) Firm offer under UCC
Termination by Offeree’s Rejection (3 ways)
i) Outright rejectionii) Rejection via counteroffer: = rejection + new offer (mere inquiry is fine)iii) Rejection via non-conforming acceptance (CL: mirror image rule)
Option contract
Elements(a) Offer +(b) Subsidiary promise to keep it open +(c) Valid mechanism for enforcing subsidiary promise: consideration is most common way
Firm offer under UCC
Irrevocable offer by merchant to buy or sell goods without consideration, 3 requirements:(i) Offer made by a merchant +(ii) In a writing signed by the merchant +(iii) Expressly stating it will be held openIrrevocable for time stated or reasonable time, BUT no longer than 3 months even if stated otherwise. Longer than 3 mos. needs consideration
Unilateral Contract
Offer seeking performance in return (ie: reward offers)Common Law: Offeror free to revoke until offeree completed performanceModern / Majority rule: Once offeree begins performance, an option K is created and offeror may not revoke. Offeree still free to stop performance at any time or not undertake performance at all (it’s his ”option”)Acceptance = completed performance as specified in offer
Battle of the Forms - UCC 2-207
If acceptance form contains terms which differ or are absent from buyer’s order: unless acceptance is expressly made conditional on assent to the additional/ different terms, nonconforming acceptance = an effective acceptance, valid, enforceable K is formed.If a consumer is involved: Additional/different are mere proposals for addition to K.Among merchants: Additional terms become part of K (unless offer expressly limits to its terms, offer objects in reasonable time, or terms would materially alter the K); for Different terms apply knock out rule (majority)
Promissory estoppel
promisee that reasonably relies to his detriment on gratuitous promise may beable to enforce that promise even without consideration. 4 Requirements:i) A promiseii) Foreseeable relianceiii) Actual reliance (induced by the promise)iv) Injustice without enforcement
Statute if Frauds (MYLEGS)
a) Marriage Ksb) Ks that can’t be performed within one Year of their makingc) Ks for (future) sale of Land (includes leases, but present sale of land is outside SOF, Real estate brokerage agreements considered service, so outside SOF)d) Ks of an Executor or administration to answer for a duty of a decedente) Ks of Guarantee or suretyship Guaranty – Promise to answer debt of 3rd partyi) 2 exceptions where guarantee agreement is not governed by SOF (unless main purpose of guarantor is to protect his own economic interests)f) Ks for the Sale of goods at $500 or more
SoF requires (not UCC)
(1) Identify of the parties to the transaction;(2) nature and subject matter of the K; and(3) essential terms of the agreement, such as price and date for performance4) Land sale Ks: need description of land5) Signature of adverse party
Satisfy land sale or sale of goods Ks without a writing
Part performance will make an oral K for sale of land enforceable if (need atleast 2 of 3):(1) Payment of all or part of purchase price(2) Taking possession of land(3) Making substantial improvements to propertyFor sale of goods: satisfied by part performance, according to UCC
Satisfy 1 year Ks without a writing
(1) If fully performed: enforceable despite SOF(2) If only partially performed: not enforceable(3) Quantum meruit: available to the partly performing party, can recover reasonable value for part performance
Promissory estoppel
May be available for detrimental reliance on unenforceable oral K:i) One party to an SOF K promises other party he will create a signed writing so party relies by not taking other steps to satisfy SOF: most courts apply promissory estoppelii) Where no specific assurances of creating a signed writing are made, but reliance is instead simply on the underlying oral K itself Majority will apply promissory estoppel (Substantial minority: Promissory estoppel is preempted by SOF, not enforceable)
UCC SoF, 5 ways to satisfy
i) Signed writing: signed by adverse party, must state or indicate quantity (unless req K), unlike in CL written offer is insufficient (unless firm offer)ii) Merchant’s confirmation: oral agreement b/t merchant, 1 sends a written/signed confirmation of agreement, SOF satisfied if recipient fails to object within 10 daysiii) In-court admission: Party admits K formation in pleading, testimony, etc: only enforceable up to quantity admittediv) Partial Performance: applies to paid for or accepted goods, indivisible unitsv) Specially manufactured goods: if goods aren’t suitable for sale to others, some reliances (began making or made commitments to get) before notice of buyer’s revocation, goods were clearly for buyer
Implied warranties (3)
i) Warranty of title: no lien, good titleii) Warranty of merchantability: fit for ordinary purposes, ONLY applies if seller is a merchant (unless disclaimed or patent defects)iii) Warranty of fitness for a particular purpose: Goods fit for the particular purpose buyer intends to use them for: ONLY when seller has reason to know AND buyer is relying on seller’s expertise, negated by clear disclaimer or patent defects
Contra proferenem
If ambiguous term is included in K construe against the drafter
When Parole Evidence Rule doesn’t apply
a) Subsequent agreements entered into after execution of the written documentb) Collateral agreements—ancillaryc) Attack on validity of written agreement.Proof allowed:(1) Failure of oral condition precedent(2) Want of consideration/false recital;(3) Mistake or duress;(4) Fraud;(5) Reformation: must show: antecedent valid agreement, incorrectly recorded due to mistake or fraud, Proof by clear/convincing ev.
Risk of loss in delivery
Common carried: default is FOB seller (buyer bears risk)Not common carrier:1) Seller is NOT a merchant: risk on buyer upon deliver2) Seller is a merchant: risk on buyer once goods are in buyer’s possession
Modification under CL and UCC
CL: pre existing duty rule, need new considerationUCC: Agreement modifying an existing K needs no consideration to be enforceable as long as made in good faith
Excusing performance due to faulty assuptions
1) Mistake (generally only if mutual, material)2) Impossibility: objective, unforseen3) Impracticability: unforseen, UCC has high bar UCC4) Frustration of purpose: substantial, basic assumption of K
Pure vs Promissory conditions
Promissory: Performance conditioned on occurrence of performance by other partyPure: condition K performance on events outside control of either party
K Defenses (6)
1) Infancy/minors (incapacity): power of avoidance, ratification, necessaries2) Mental incompetency (incapacity): ratification, necessaries, bad faith3) Misrepresentation: sciener (or negligent misrep), materiality, reliance4) Duress: threat, wrongful, no reasonable choice5) Undure influence: unfair persuasion + vulnerability6) Unconscionability: procedural or substantive7) Public policy/illegality: improper subject matter, K is a crime or tort
Formula for expectation damages
Loss of value of breaching party’s performance+ incidental and consequential costs generated by breach– Payments received– Any costs saved as result of breach= Expectation damges
Formula for reliance damages
Money spent in prep for performance or in actual performance- loss breaching party can prove aggrieved party would have suffered if K fully performed(may be avaiable when expectation damages are too uncertain)
Specific Peformance
Equitable remedy.a) Only available when $$ is inadequate (uniqueness req)b) Equity considerations: clean hands, fair and definite terms, performance can be reasonably assuredc) Not available – Personal service Ks or Ks requiring ongoing cooperationd) Under the UCC: uniquenss, no reasonable substitutes
11th Amendment, exceptions (5)
prohibits private individuals from suing states for MONEY damages in any court, Except:a) suits brought a state or the fed govtb) Lawsuits against subdivisions of a state (i.e., cities, towns, counties);c) Most lawsuits for injunctions;d) If state consents;e) money damages against states for violations of 13th, 14th, and 15thAmendments
to get into fed court
RAMPSR: Ripeness: claim fully developedA: Abstention: undecided issuesof state law or (for SC only) Adequate and Independent State GroundsM: Mootness (except if “capable of repetition, yet evading review”)P: Political Q (Constitution suggests decision-making authority is given toanother govt actor; decision is political rather than legal)S: Standing (ICR)
Standing in fed court, reqs (3)
Article III requires a person to show:(1) Injury in fact: actual or imminent(2) Causation(3) Redressability: P will benefit from remedy sought
An organization has standing to assert claims of its members if:
(a) members would have standing in their own right;(b) The interest asserted is germane to the organization’s purpose; and(c) Neither the claim asserted nor the relief requested requires participation by the individual members in the lawsuit
Necessary and Proper Clause
implied power to make laws that are “necessary andproper” to carry out an enumerated power
congressional powers (5)
1) Legislative: enumerated, nec and prop, enabling2) Commerce: interstate, channels, instrumentalities, economic activigties3) Taxing and Spending: general welfare, noncoercive, unambigous, relatedness4) War and Defense: war, draft, price, rentral control5) Civil War Amds: congruent and proportional remedies for widespread state violations
Executive powers (7)
1) Enforcement2) Appointment: high level officials (PAS)3) Removal: need cause for fixed term or judicial functions4) Veto: override of house and senate, no line-itme5) Pardon: for fed crimes only6) Commander in chief, military power: surprise attacks, tactics7) International afairs: treaties (need 2/3 of senate) and Exec Agreements
Impeachment Power
The House has the sole power to impeach, and the Senate tries the impeachment (need 2/3 voteto convict)Impeachable offenses: treason, bribery, and other high crimes and misdemeanors
A state is immune from federal taxation if…
…the tax is applied to unique state activities or essentialgovernmental functions
Dormant Commerce Clause
Rule: States cannot discriminate against out-of-state economic actorsIf a state law discriminates on its face: reg must be necessary to a compelling state interestIf a state law incidentally burdens interstate commerce: reg must serve an important state interest, and burden cannot be excessive in relation to interest servedExceptions:(1) Congressional authorization(2) States acting as market participant
Exceptions to state action requirement for constitutional violations (3)
1) Public-function theory: traditionally govt activities2) Significant-state-involvement theory: action closely encouraged/supported by the state3) 13th Amendment: applies to private actions
Procedural Due Process
To deprive someone of life, liberty, or property, the government must give notice and an opportunityto be heard (i.e., a hearing).Factors to determine adequate notice and hearing (Matthews test):(a) The importance of the individual interest protected;(b) The risk of an erroneous deprivation of this interest through the procedures used; and(c) The government’s interest in streamlined procedures
Substantive DP for Economic Regulations
Substantive due process rights are not economic: economic regulations need only meet rational basis review
Public-function exception (alienage)
some jobs or activities may be withheld from residentaliens, including:1. Police officers2. Governmental officials3. Public school teachers
tier of scrutiny against illegal aliens
RBR
14th Amendment Privilege and Immunities (P&I) Clause
Very limited application, primarily includes the right to:i) Travel across state lines and establish residence in a new state;ii) Petition Congress;iii) Vote for federal offices;iv) Assemble; andv) Enter public landsCorporations are not protected
Article IV, section 2 P&I Clause
Prohibits states from discriminating against non-residents (based upon the fact that they do not residein the state) with respect to rights and activities that are fundamental to the national unionTest: The state can discriminate if it is substantially related to a substantial state interestCan charge more for recreational licenses,but not commercial licenses
Where legislation is neutral on its face re religion
Lemon test:(1) The statute must have a secular legislative purpose;(2) The principle or primary effect or purpose must neither advance nor inhibit religion; and(3) The statute must not foster an excessive government entanglement with religion
Govt money to to pay relig school teachers
States cannot give money to be used directly for religious instruction; or to Religious secondary schools for salaries of teachers of secular subjects (risk of “excessive government entanglement”)But may give such money to schools at the university level
Test for Obscene speech
Miller test: speech is considered obscene if:(i) The average person, applying local contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;(ii) The work depicts or describes, in a patently offensive way, sexual conduct that is specifically defined by state law; and(iii) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Defamatory speech
(a) Private person, private concern: no proof of malice or negligence needed(b) Private person, public concern: negligence about the truth or falsity of the statement (no malice required)(c) Public official/figure: “actual malice” (knowledge of the falsity or reckless disregard of the truth or falsity)(d) Private person suing media for false-light invasion of privacy for matter of public interest: actual malice, truth defense if in public record
“Unprotected speech” (5)
RBR applies, “Unprotected speech” includes:(1) Speech that advocates violence or unlawful action: inciting or producing imminent lawless action(2) Fighting words: likely to incite an ordinary citizen to commit immediate physical retaliation, must be direct, personal insult(3) Hostile audience speech: Police must make reasonable efforts to protect against a “heckler’s veto” (4) Obscene speech: miller test (local contemporary community standards, prurient interest, lacks serious literary, artistic, political, or scientific value)(5) Defamatory speech
Regulation of Commercial speech
Commercial speech that is false or deceptive, or thatrelates to unlawful activity: govt may regulationCcommercial speech is not false or deceptive and does not relate to unlawful activity: reg must (a) Serve a substantial governmental interest;(b) Directly advance the substantial gov interest; and(c) Not be more extensive than is necessary to serve that interest
Time, Place, Manner
Public forums: regulation must:(a) Be content neutral, as to both subject matter and viewpoint(b) Be narrowly tailored to serve an important government interest; and(c) Leave open alternative channels of communicationNon-public forums: regulation must be reasonably related to a legitimate government purpose
Intentional Infliction of Emotional Distress (IIED)
def: D engages in intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distressi) Intentional or Recklessness: desire, knowledge of virtually certainty, or conscious disregard of a high degree of probabilityii) Extreme and outrageous conduct: exceeds all bounds tolerated by civilized societyiii) Severe emotional distress: P does not have to prove physical injury, but distress must be severe – greater than reasonable person would expect to endure; must be substantial/long lasting, not trivial/transitory
for IIED, offensive language alone…
…is generally. not enough, except when:1) D is a common carrier/innkeeper, 2) D knows of P’s particular sensitivity, or3) D is an Authority figure using racial/ethnic slurs against underling
Trespass to chattels
def: D interferes with P’s chattel, causing damagesi) Intent: D intentionally performs the physical act that interferes; Liable despite good faith intent not ti trespass, mistake is not a defenseii) Interference = Uses or borrows w/out authorizationiii) Actual Damages – Unlike trespass to land, need damages, not nec to the chattel but need some damages by loss of use in case of dispossession
Remedies for Trespass to chattels
i) Damages – Cost of repair, fair market rental value, punitive if bad actorii) Replevin – Get back personal property of which one has been wrongfully dispossessed
Conversion
Intentional act by D that causes the destruction of or serious and substantial interference with P’s chatteli) Intent: mistake is no defense, liable even if acting in good faith and no intentii) Dominion and control (BFP)iii) Destruction or Serious and substantial interference = the exercise by D of dominion and control (longer period of interference than trespass to chattel)
Remedies for conversion
i) Forced sale (common) – Market value at time converted + punitive if bad actorii) Replevin – Brought by P to get personal property back
Defenses and privileges to intentional torts
POPCANSa) Privilege: shopkeeper (Not liable for false imprisonment if had a reasonable suspicion, can detain for reasonable period in reasonable manner in vicinity)b) Others (defense of others)c) Property: never deadly force to protect personal or real property, may use reasonable force to eject a trespasser after asking him to leave, Recapture of chattels use reasonable non-deadly force ifrequest first or request would be futile and P is in hot pursuitd) Consent – usually a defense for battery and assault (express, limited scope, implied)e) Authority: arrest (cop reasonably believes D committed a felony, or if misdemeanor constituting a breach of the peace; private person liable for tort if wrong) Discipline (Parent/teacher may use reasonable force)f) Necessity: permitted to injure P’s property if reasonably necessary to avoid a substantially greaterharm; public or private, D is privileged even if made an honest mistake, D liable for harm causedg) Self-defense: D honestly and reasonably believes she used reasonable and proportionate force to prevent P from engaging in an imminent and unprivileged attack
ability of resurers to recover in negligence cases
Nonprofessional rescuers are foreseeable P’s as a matter of policy and can recover against negligentparty creating need
Public Duty Doctrine
Courts find no duty when cops/fire fail to provide an adequate response, except when:(a) Special relationship;(b) Agency has increased the danger
Negligence when D is governmental entity
Whether duty is owed depends on function(1) Proprietary function (acting in private area): Treated as any other D for duty analysis(2) Discretionary activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty(3) Ministerial function: Duty once gov has undertaken to act (Ex: stop sign installed incorrectly leading to accident)
Negligent infliction of emotional distress NIED
(courts reluctant)Def: Bystander actions, OR if D engages in neg conduct and as a result, P suffers emotional distress + some sort of physical manifestation,Most jurisdictions require zone of danger: risk of physical harmExceptions to these req’s:(i) D negligently commits death of a loved one(ii) D negligently mishandles a corpse
Bystander actions
= Physical harm occurs to a close relative and P suffers emotional distress as a result.Elements:(a) Was located near scene of incident(b) Suffered severe emotional distress(c) close relationship with victim (immediate family member)
Duty to Ps on D’s land
(1) Invitees = Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities: duty to exercise reasonable care to prevent injuries caused by activities conducted on his land(2) Licensees = Enters D’s land with D’s express or implied permission and who’s not there for a purpose benefiting D or D’s activities nor is land held open to public (i.e. social guest): Must warn of known concealed dangers (just warn, not cure)(3) Trespassers = Enters without express or implied consent of land possessor: Duty to avoid infliction of willful or wanton harm(4) known or frequent trespassers (must be obvious like well-worn path): Duty to warn of concealed dangerous artificial conditions(5) Children: attactive nuisance doctrine
Child trespassers (attractive nuisance doctrine)
5 factor test, If conditions apply, even though child, treated as invitee:(1) Too young to appreciate the danger(2) D knows or has reason to know of trespass(3) D knows of the dangerous condition(4) Artificial condition(5) Does risk outweigh the utility and burden to fix it?
LL only liable to those on premises for (4)
(a) Common areas over which LL retains control(b) Negligent repairs(c) At time of lease, LL knows of a concealed dangerous condition(d) LL knows that T is going to hold property open to public
Standard of materiality
New Trend in med mal, Must divulge all material risks, risks that a reasonable patient would want to know in deciding whether to undergo procedure. Failure to divulge material risk is malpractice IF P can show would have refused procedure if risk was divulged
Substantial factor test (torts)
Apply when there are multiple causes (instead of “but for” test) = 2 Ds cause harm, but each D alone would have been sufficient to cause entire harm: each D is a cause-in-fact if D was a substantial factor in causing the harm (Ex: Two arsonists’ fires burn down same mansion).Assume joint and several liability = can sue one or both
Proximate cause
Policy reasons to cut off liablity:1) Unforeseeable extent of harm: D responsible for full extent as long as type is foreseeable, Eggshell skull 2) Unforeseeable type of harm: not liable if injury was not within the risk created by D’s negligent conductc) Unforeseeable manner of harm: not liable if there is a superceding cause cutting off the chain of causation (subsequent neg doesnt count)
Damages of negligence
Compensatory damages: return P to pre-injury position(1) Type if damage must be foreseeable (not the extent);(2) Reasonably certain (not speculative);(3) Not avoidableSpecial damages: Pecuniary (med costs), lost wages, cost of repair (past, present, and future damages)General damage: More controversial because intangible, Pain and suffering, difficult to measurePunitive – never recoverable just for neg conduct – must be more culpable, like willful, malicious, or reckless; Due Process Clause limits amt. more than 10% ratio to compensatory unconstitutionalNominal: not avaiable for neglgience
Collateral source rule
The fact that P has insurance doesn’t mean D doesn’t have to pay them. Also applies to gratuitous services
Defenses for products liablity
i) Misuse—P’s use of product neither intended nor foreseeableii) Alteration—Employer removes safety devices to increase efficiencyiii) Assumption of risk—Comparative fault/general unreasonable conduct by P
Private Nuisance, factors (5)
=A thing or activity that substantially or unreasonably interferes with P’s use and enjoyment of landUsually intentional, because once D is placed on notice that she is interfering, D stilldoesn’t stopFactors balancing substantial/unreasonable interference:i) Value of D’s activity;ii) Alternatives?;iii) Nature of locality;iv) Extent of P’s injury;v) Who was there first? (no longer a complete defense)Remedy: Injunction (equitable relief) – P must persuade a judge that:i) Suffering or will suffer irreparable harm + Damages are inadequate remedyii) Judge will then do balancing test
Slander per se
=harm is presumed from publication:(a) imputes to P behavior or characteristics that are incompatible with theproper conduct of his business, profession or office(b) imputes to P commission of crime involving moral turpitude or infamous punishment (prison/death)(c) Allegations P has some loathsome disease(d) Falsely imputing lack of chastity to a woman
Negligent Misrepresentation
Generally: D has no duty to avoid negligent infliction of pure economic loss.Exception 1: When there is a special relationship like fiduciary duty or if D knows that they are acting for benefit of 3rd party and they rely and suffer economic loss (Ex: Lawyer prepares a K for client and drafts it negligently so the client loses $1M and client sues for malpractice—lawyer cannot avoid liability because it’s purely an economic loss. There is a fiduciary duty)Exception 2: If D knows that they are acting for benefit of 3rd party (end and aim to benefit the 3rd party) and the 3rd party relies and suffers economic loss (Ex: context of lawyer/client, non-parties can only recover in content of will drafting, where drafted negligently leading to economic loss for intended beneficiary)
