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Final Flashcards

1
Q

Takings Rule Statement

A

A government taking typically arises under the police power which affords broad discretion to regulate health, safety, and the welfare of the people

A regulation is different from a taking

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2
Q

Exaction

A

The government may impose an exaction or demand in exchange for a benefit conferred by the government

(think the Gov is requiring a developer to give land for a new park)

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3
Q

Exaction Elements

A
  1. essential nexus between public need and proposed exaction
  2. benefit of demand is roughly proportional to the burden
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4
Q

If the government takes private property and transfers it to another private owner, what must the challenger prove?

A

Challenger must prove that the transfer is not rationally related to any conceivable public purpose

STEVE gets my land instead of me? HOW IS THAT related to any CONCEIVE (rhymes with Steve) public purpose??

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5
Q

Penn Central Factors to determine if a regulation is a taking

A
  1. economic impact on property owner
  2. interference with reasonable investment backed expectations
  3. character of regulation
    “Does it benefit society?”
    “Does is violate essential attributes of property ownership?”
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6
Q

A government regulation is a per-se taking when:

A
  1. permanent physical occupation

2. total loss of economic value

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7
Q

Which amendment contains the takings clause?

A

The 5th A

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8
Q

Liberty includes:

A
  1. freedom of action
  2. right to contract
  3. right to employment
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9
Q

Property Includes:

A
  1. legit claim
  2. entitlement
  3. benefits/public school
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10
Q

How much process?

A
  1. individual interest
  2. procedure
  3. government interest
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11
Q

Equal protection suspect class

A

Government must prove least restrictive means to achieve compelling

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12
Q

Equal protection quasi-suspect

A

Government must prove substantial related to important

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13
Q

How can the government regulate in public and designated forums?

A

Time, place, manner IF
Content neutral
Narrowly tailored important government interest
Leave open alternative channels

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14
Q

How can the government regulate in limited and non-public forums?

A
  1. View point neutral

2. Reasonably related to legit gov.

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15
Q

Content Neutral: Intermediate

Content-Neutral Regulation: Symbolic Speech/Expressive Conduct

A
  1. Advance important interest
  2. Unrelated to suppression of speech
  3. Narrowly tailored to further those interests

(ie The freedom of speech can extend to symbolic acts or expressive conduct undertaken to communicate an idea, although the government may regulate such conduct if the regulation is narrowly tailored to an important government interest, and is unrelated to the suppression of ideas.)

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16
Q

Speech and Conduct Initial Rule Statement

A

Presumptively unconstitutional to place burdens on speech because of its content (except unprotected speech)

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17
Q

Lemon Test

A
  1. If the government action doesn’t involve a sect preference, valid under establishment clause if secular purpose
  2. Has a primary effect that neither advance or inhibits religion
  3. Does not produce excessive government entanglement with religion
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18
Q

Can the government deny benefits or impose a restriction on someone based on their religious beliefs?

A

Technically, yes, if there is a compelling interest. However, the Supreme Court has never found an interest so compelling that it justifies such action

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19
Q

The government cannot require employees to take a religious oath, states may not exclude clerics from holding public office, and courts may not declare a religious belief to be false. What clause is this?

A

Free exercise clause.

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20
Q

10th A

A

Fed virtually unlimited power to regulate. Congress may regulate states so long as exercising enumerated power

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21
Q

Dormant CC

A

States may not discriminate against interstate commerce unless necessary compelling and no reasonable non-discriminatory alternative

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22
Q

Under Dormant CC, what if the state action is non-discriminatory on its face but yet still burdens interstate commerce?

A

Valid only if important state interest unreasonable burden on commerce

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23
Q

Under Dormant CC, what if state action operates as a tariff or trade barrier?

A

Unconstitutional per-se

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24
Q

When does SCOTUS have original jx?

A
  1. when a state is a party

2. ambassador, public ministers, and consuls

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25
Q

Enumerated Powers Rules Statement

A

Congress can exercise those powers enumerated in the constitution plus powers necessary proper to carry out the powers vested in the government

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26
Q

Taxing and Spending Rules Statement

A

Most taxes will be upheld if the Congress has power to regulate the activity OR reasonably relationship to revenue production

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27
Q

Commerce

A

Channels
Instrumentalities
Activities with sub-effect on interstate

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28
Q

How can you tell if an activities have a sub-effect on interstate?

A

Economic or commercial AND rational basis that aggregate affect interstate commerce

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29
Q

Civil Rights

A

13, 14, 15 A’s

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30
Q

When may Congress delegate legislative power?

A

If “intelligible” standard and not exclusively a power of Congress

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31
Q

Schools that open facilities to religious speech

A

SCOTUS has held that schools that open facilities to religious speech under a CONTENT NEUTRAL policy do not violate establishment

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32
Q

Invasion of Privacy

A

Public dissemination of truthful private information that would be highly offensive to a reasonable person and not newsworthy

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33
Q

Actual Malice “Defamation”

A

Reckless disregard for the truth or knowledge of falsity

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34
Q

Heightened Intermediate EP Scrutiny

A

Sub related important AND exceedingly persuasive

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35
Q

Private Actors = Gov.

A

Traditional
Exclusive
-OR-
Significant Entanglement between state and private actors

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36
Q

Accessions

A

Physically united BUT with separate identities (ex. GPS)

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37
Q

After acquired clause + attachment

A

After acquired clause = automatic attachment unless consumer goods after 10 days

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38
Q

PMSI Equipment

A

Automatic perfection but then must file within 20 days

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39
Q

Small scale assignment of accounts receivable

A

Automatically perfects

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40
Q

PMSI Inventory

A

Automatic perfection but must file by the time the debtor has possession of inventory and give notice to 3P

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41
Q

Deposit Account

A

Only perfected by control

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42
Q

Security Interest from Proceeds

A

Automatic perfection but only for 20 days

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43
Q

Exception where the security interests in proceeds remains perfected beyond 20 days

A
  1. cash proceeds
  2. financing statement in same office
  3. “all of debtors property”
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44
Q

When do you need to re-perfect?

A
  • 20 days after delivery of goods
  • after 5 years
  • if debtors moves within 4 months
  • if collateral moves 1 year
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45
Q

BIOC takes free

A
  1. merchant
  2. good faith
  3. without knowledge
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46
Q

Perfect v. Lien

A

Perfect wins

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47
Q

Whole v. Accession

A

Whole wins

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48
Q

Mortgage v. Fixture where creditor did not perfect within 20 days

A

Mortgage wins

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49
Q

PMSI in Equipment if perfected within 20 days of debtors possession v. After-acquired

A

PMSI wins

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50
Q

Rights of secured party

A

take back as long as no violence (breach of peace) (trickery is ok)

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51
Q

Judicial writ ordering sheriff to get collateral

A

forclosure (with notice)

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52
Q

How to dispose of collateral

A
  1. via commercially reasonable sale

2. via public purchase

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53
Q

Rule statement for when you see an accession (like GPS installed into cars)

A

The issue is whether a security interest in goods continues after its installation into equipment that another creditor has a perfected interest in.

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54
Q

PMSI definition/ rule statement

A

A purchase money security interest (PMSI) arises when a creditor extends value to the debtor for the purpose of enabling the debtor to acquire rights in the collateral.

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55
Q

Filing a financing statement with the trade name

A

a filing in the debtor’s trade name instead of its corporate name is not effective unless the trade name is so similar that is is not seriously misleading

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56
Q

the buyer of consumer goods in a consumer-to-consumer transaction

A

takes free of a security interest if the buyer buys without knowledge of the security interest before the creditor files a financial statement.

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57
Q

identifiable cash proceeds.

A

cash, checks, and deposit accounts

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58
Q

what do you file to transform a GP to an LLP

A

file a “qualification” with the appropriate state office

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59
Q

Dissociation

A

RUPA 2013 - need to give notice, but it does not need to be in writing.

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60
Q

Winding up

A

assets distributed
liability paid
business settled

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61
Q

duties owed during winding up and dissolution process

A

still owe fiduciary duties (care, loyalty, and good faith and fair dealing) but no longer owe a duty not to compete

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62
Q

solutions for a breach in a partnership

A

direct action

demand accounting

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63
Q

is there a right to sunlight, fresh air, or view

A

no!

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64
Q

“don’t record this until later”

A

irrelevant– deed is still delivered

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65
Q

When can a private person sue for a public nuisance?

A

Typically public nuisance claims are brought by the government, but a private person can sue for a public nuisance if they sustain harm that is different from the public at large.

Public nuisance is one that interferes with health, safety, or convenience of the public at large.

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66
Q

“buzz words” for private nuisance

A

interfered with reasonable use and enjoyment of property

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67
Q

“coming to the nuisance”

A

would only work if came, without good faith, for purpose of litigating the nuisance

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68
Q

how to convey a deed

A
  • intent to convey - delivery of the deed. So therefore, just destroying or ripping up the deed will not mean that it was not delivered.
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69
Q

are juries of 6 allowed?

A

yes, but must be unanimous

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70
Q

Conflict of laws: A federal court exercising ____ jurisdiction over ____ claims must apply the conflict of laws approach of ____

A

A federal court exercising diversity jx over non-federal claims must apply the conflict of laws approach of the state in which it sits

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71
Q

Are decisions from foreign courts given FFC?

A

No - but they may be recognized. Ct will look at whether the court had jx and if fair procedures were used.

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72
Q

Contract under the Most Significant Relationship test

A

think about buying a membership at a SPA that has unlimited milk chocolate -

subject matter of the contract
party location
acceptance of contract (location)

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73
Q

Torts Most Significant Relationship test

A

CRIPled by a candy bar.

Conduct location
Relationship location
Injury location
Party location

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74
Q

Basically, with the government interest test

A

court will look at its own forum laws and other forum laws and determine if the Gov has a legitimate interest in applying one of those two

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75
Q

Requirments to remove a case from state to fed

A

D must file notice of removal in fed court for the district in which the state action is pending within 30 days of the D receipt of complaint.

Must be signed

must include a statement for the basis of the federal jurisdiction

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76
Q

Most important thing to remember about removal

A

Removal is not properly if the D is a citizen of the forum state and the case is based on diversity

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77
Q

Create a trust

A

SPITball

Settlor with capacity to convey
Present intent to create a trust
Trustee with duties
Beneficiary is definite (identified by name OR sufficiently describes how beneficiaries will be ascertained) (sole trustee cannot be sole beneficiary)
In contrast, a beneficiary may serve as trustee as long as the SOLE beneficiary is not the SOLE trustee (so this would be fine: A woman purported to create a trust, naming her niece and nephew as beneficiaries and her niece as the sole trustee.)
To be extra fancy, when the sole B is the sole T, you can call it the “doctrine of merger” because the unity has merged.
(And also a trust must have a valid purpose (not contrary to public policy)

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78
Q

Can a trust be created without a writing?

A

yes, as long as it is clear and convincing

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79
Q

Per Capita

A

equal between grandchildren

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80
Q

4 exceptions to things that are not “adjudications on the merits”

A
  1. Dismissal for lack of jx
    1. Dismissal for improper venue
    2. Dismissal for failure to join a party
    3. Dismissal without prejudice
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81
Q

What does it mean to say that the power of Congress is remedial?

A

Any exercise of the enforcement power must be congruent and proportional to the violation it is addressing. Congress may not legislate to prohibit constitutional behavior where there is no constitutional injury to be prevented or remedied.

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82
Q

Comandeer

A

Congress may not commander or require states to adopt or enforce a federal program

or requires states to govern in a certain way

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83
Q

Overbreadth

A

If a law is facially overbroad, it will be invalidated. A law is overbroad if it regulates speech that the Constitution allows and as well as unprotected speech at the same time.

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84
Q

Vagueness

A

If a law is facially vague, it will be invalidated. A law is vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

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85
Q

Commercial Speech

A

The government may restrict commercial speech (advertising), and a law restricting such speech is upheld if:

(i) the commercial speech concerns lawful activity and is neither false nor misleading;
(ii) There is a substantial govt interest,
(iii) Regulation must directly advance the govt interest, and
(iv) The regulation must be narrowly tailored to serve that interest – NOT least restrictive means, but there must be a reasonable fit between govt interest and the regulation

86
Q

Prior Restraints

A

A prior restraint is a regulation of speech that occurs in advance of its expression, and is presumed to be unconstitutional with limited exceptions. The rare exceptions require, at a minimum, that:

(1) There is particular harm to be avoided (like publication of troop movements), and
(2) Certain procedural safeguards are provided to the speaker
a. Examples of safeguards:
i. The standards must be reasonably drawn, reasonable, and definite
ii. The censoring body must promptly seek injunction
iii. There must be prompt and final judicial determination of the validity of the restraint.

87
Q

Unfettered discretion

A

A law that allows a government official to restrict speech (e.g., requires an official to issue a permit before a rally can be held) must provide definite standards as to how to apply the law to prevent the officials from having unfettered discretion over its application. Law must be:
(1) Related to an important govt interest and
(2) Contain procedural safeguards
a. The standards must be reasonably drawn, reasonable, and definite
b. The censoring body must promptly seek injunction
c. There must be prompt and final judicial determination of the validity of the restraint.
Law that gives govt officials unfettered discretion is void on its face.

88
Q

Freedom of Association

A

Under the First Amendment, an individual has the right to freely associate with other individuals in groups, and any government regulation/law restricting this freedom must meet strict scrutiny (narrowly tailored to a compelling govt interest, and least restrictive means)

89
Q

elements for when congress conditions funds on a state’s compliance with a directive

A
  • spending must be for the general welfare (court will give substantial deference to Congress)
  • condition must be imposed unambiguously
  • condition must be related to the deferral interest
  • condition must not be used to induce the states to engage in activities that would be unconstitutional
  • can’t be unduly coercive
90
Q

Rule statement for exceptions to 11th

A

As an exception to the 11th A, a federal court may enjoin a state officer to refrain from future actions (ie injunctive relieve) that violate federal law.

91
Q

Even when Congress has not acted, the Commerce Clause of the U.S. Constitution imposes

A

a negative implication on state laws that discriminate agains or unduly burden interstate commerce. This is known as the Dormant Commerce Clause.

92
Q

Elements for when an automobile stop is allowed

A

neutral and articulable standards

  • stop designed to serve a purpose closely related to a particular problem pertaining to automobiles and their mobility.
93
Q

Recklessness definition (for Criminal mens rea)

A

acting with knowledge that a specific injury might result.

94
Q

Assignment

A

A transfer of rights under a contract is called an assignment. A writing is not required to have an effective assignment, so an oral assignment is generally effective.

95
Q

Contract - unilateral and bilateral mistake

A
  • relates to basic assumptoion
  • material effect
  • did not bear risk

(for unilateral) you also need at lease one of the following 3:

  • unconscionable (unenforceable)
  • other party knew or had reason to know of the mistake
  • the mistake is the other party’s fault
96
Q

If the buyer of property discovers that title is not marketable, they can notify the seller before the closing date and give them a reasonable time to cure the defects. If the seller doesn’t cure,

A

Buyer can seek specific performance
Damages
AND an action to quiet title

97
Q

Secured transactions - “economic reality”

A

Whether a lease creates a “true lease” or a security interest depends on the economic realities of the transaction.

lease creates a valid security interest as opposed to a true lease if lease payments are made for the full term of the lease, the lease is not subject to termination, and the lessee has the option of becoming the owner of the collateral at the end of the lease term for a nominal additional consideration.

98
Q

Order of distributions when a secured party with priority sells collateral to satisfy debts

A

the proceeds of that disposition are allocated in the following order: (1) the expenses of selling the collateral; (2) satisfaction of the debt of the secured party with priority; and (3) satisfaction of the debt of any subordinate interests.

99
Q

JMOL (including timing)

A

a motion for judgment as a matter of law may be raised by either party during the trial proceedings claiming that the opposing party has insufficient evidence to reasonably support its case.

Timing is very important in making a motion for JMOL; the motion can be made only after the opposing party had presented its case. A party that raised a JMOL may then make a post-judgment JMOL within 28 days of the entry of a judgment. The post judgment JMOL is limited to the grounds that were raised by the JMOL.

100
Q

when will a renewed JMOL (post judgement JMOL be granted)

A

Legally sufficient basis - a post judgment JMOL will be granted only IF the court finds that a reasonable jury will not have a legally sufficiency basis to find for that party.

101
Q

habeas has to do with — state or fed?

A

federal law. The Supremacy Clause prohibits states from interfering with federal detention by issuing a writ of habeas corpus.

102
Q

are inter-branch disputes involving foreign affairs subject to the political question doctrine?

A

No- Disputes involving foreign affairs are not subject to the political question doctrine when they concern the validity of a federal statute.

103
Q

What does assigning a mortgage note end up doing?

A

The assignment of a note automatically transfers the mortgage to the assignee of the note; a separate document assigning the mortgage to the assignee isn’t necessary.

104
Q

Is a deed to a deceased grantee valid?

A

yes

105
Q

Business Judgment Rule

A

Under the business judgment rule, courts will within reasonable bounds, cloak the acts and choice of a director of a corporation with an assumption that they acted in good father, unless extrinsic evidence suggests clear wrong doing.

106
Q

What is a conflicting interest transaction?

A

A conflicting interest transaction is a transaction where a director had knowledge and material finical interest in a transaction. This type of transaction is subject to JUDICIAL SCRUTINY.

BJR will not shield an interested director from liability.

107
Q

FRCP requires fed its to allow a non-party to join as a matter of right if:

A
  • party has an interest in the property or transaction that is subject to the action
  • disposition of the action WITHOUT the party may impair the the party’s ability to protect that interest (UNLESS the party is already adequately represented by the present parties)
108
Q

If you feel like you are making up the rule in civ pro, what are some words or phrases to think to include

A 
direction of the court 
degree of harm
as justice so requires
risk of undue prejudice 
afforded due process 
good faith participation of the parties in the procedural process
109
Q

Interlocutory injunctions

A

equitable forms of relief to maintain the status quo until a there has been a trial on the merits, include TRO and preliminary injunctions

110
Q

when can a TRO be granted?

A

A TRO may be granted by the court without notice to adverse party when it is necessary to prevent IMMEDIATE AND IRREPARABLE INJURY.

A TRO only lasts long enough for a court to CONSIDERR A PRELIM injunction, which would last no longer than 14 day (absent a showing of good cause).

111
Q

Prelim injunction

A

sought prior to the trial on the merits of the case
awarded when the P will suffer irreparable harm if the injunction is not granted
harm IF NOT granted outweighs any harm to D
P is likely to be successful on the merits
public interest favors granting injunction

112
Q

When can you amend a pleading?

A

1x as a matter of right

after that, only with the other party’s consent or leave of court

113
Q

What is court’s attitude about amending pleadings?

“Justice is better served”

A

Court freely grants leave unless doing so would result in injustice

“Justice is better served by allowing an amendment and having a case decided on its merits as opposed to a decision based on a technicality”

114
Q

SMJ factors

A
  • NO genuine issue of material fact
  • therefore, moving party is entitled to JMOL
  • courts will consider a motion for SMJ in light most favorable to the non-movant
115
Q

When must a defense of insufficient process be raised?

A

Pre answer motion OR answer (whichever is filed first)

116
Q

Usually an impleader claim will be for

A

indemnification or contribution

117
Q

PJ steps

A
  • long arm statute
  • DP of 14
  • general
  • specific
118
Q

What kind of jx should you discuss with a cross-claim?

A

supplemental

119
Q

Who is issued monetary sanctions when a lawyer messes up under Rule 11?

A

The lawyer or the law firm, not the client.

120
Q

How much will the court award for sanctions?

A

Court has considerable discretion. they will consider what is necessary to deter repetition.

121
Q

Rule 11 requirements

A

Rule 11 provides that all papers served in litigation must be signed by an attorney of record or by the party personally (if unrepresented).

When presenting to the court, a party is certifying that they are not presenting claims, defense, or contentions with improper or frivolous purposes. They are also attesting that the factual contentions have evidentiary support.

122
Q

standard for certification to the court that what is being offered is not frivolous or offered for an improper purpose

A

must be to the best of the person’s knowledge and belief after REASONABLE inquiry under the circumstances.

Rule 11 imposes a continuing duty on parties or attorneys in that each time a pleading or filing is referred to, the attorney verifies that the contents of that pleading or filing are sill supported.

123
Q

What should attorney do if it comes to light that an asserting in a filing is inaccurate?

A

The attorney has a duty to amend the filing to reflect the truth.

If a party believes that the other side has violated Rule 11, it must serve a motion for sanctions on the opposing counsel asking it to withdraw or amend the filing to comply with Rule 11. If the party fails to do so within 21 days, THEN the complaining party file a motion for sanctions.

124
Q

how do you cure problems with a will

A

by codicil

125
Q

Is it ok if a witness to a will has an interest?

A

yes, now it is. It was not at common law. But when there is an interested witness, this means you need TWO disinterested witnesses in addition.

126
Q

slayer statute

A

prevents those who intentionally caused a decedents death from taking

127
Q

PSQP- essential terms under common law

A

parties subject quantity price

128
Q

PSQP- essential terms under common law

PSQ- UCC

A

parties subject quantity price

UCC is willing to plug the gaps. Price is not required.

(and to note– requirement and output contracts ARE valid under the UCC even though by nature they do not include quantity)

129
Q

firm offer elements (UCC)

A

think a merchant named WES has a firm handshake

Writing
explicit promise not to revoke
signed by the merchant

130
Q

How long does a firm offer last under the UCC?

A

for the time stated, or else for a reasonable time not to exceed 90 days

131
Q

Acceptance is governed by a _____ test

A

objective

132
Q

UCC 2-207 Battle of the Forms

A

Under the UCC, the acceptance does NOT have to be a mirror image of the offer.

1) a definite and seasonable expression of acceptance or written confirmation
2) which is sent within a reasonable amount of time
3) operates as an ACCEPTANCE even though it states terms additional to or different from those offered or agreed upon
4) UNLESS acceptance is expressly made conditional upon assent to the additional or different terms

133
Q

What is the second step of the analysis in a Battle of the Forms problem?

A

If the purported acceptance is valid acceptance under the UCC 2-207, the next issue is whether the additional or different terms in the acceptance will govern the contract OR whether UCC “gap fillers” will be implemented.

The ADDITIONAL TERMS will govern the contract IF BOTH PARTIES ARE MERCHANTS….unless…..

1) the initial offer expressly limited acceptance
2) additional terms materially alter the deal
3) the offeror objects to the new terms in a reasonable amount of time

134
Q

UCC Knockout Rule

A

Under the knockout rule, a distinction is made between “different” and “additional” terms.

A DIFFERENT term is one that was not include in the original offer and CONFLICTs

Additional term was not include but does NOT CONFLICT with original

Under the knockout rule, DIFFERENT terms knock each other out and UCC gap fillers will be used but the knock out rule does not apply to ADDITIONAL TERMs

135
Q

condition precedent

A

where performance under the contract is contingent on the occurrence of a condition, this is known as a condition precedent. Good faith efforts must be made to satisfy this condition, otherwise the condition is excused.

136
Q

Does a change in terms count as consideration?

A

yes

137
Q

Expectation damages rule statement

A

Actual or expectation damages seek to put the nonbreaching party in the position he would have been in but-for the breach.

138
Q

Consequential damages

A

Consequential damages are those that are foreseeable because of the breach. They must not be speculative.

139
Q

Punitive damages

A

Punitive damages are generally provided in order to punish wrongful conduct. In contract matters, punitive damages are not awarded unless the conduct constituting breach of contract was also a tort (where punitive damages may be awarded).

140
Q

List of things that are NOT consideration

A 
illusory promise 
pretense of consideration (causing "sells" his car to his cousin for 1 dollar)
past consideration 
pre-existing legal duties
gift promises
conditional gift promises
141
Q

Calculation of expectation damages

A

Calculation of expectation damages aims to get the benefit of the bargain

142
Q

lost profits as consequential damages

A

Courts are reluctant to award lost profits to new businesses since such profits are generally too speculative to meet the standard of reasonable certainty.

143
Q

Modern view and need for consideration when there are unforeseen circumstances

A

Under the modern view, modification is permitted without consideration if the modification is due to circumstances that were unanticipated at the time of contract formation and such modification is fair and reasonable.

144
Q

Under the UCC, a contract can be modified without additional consideration as long as there is good faith. What does good faith include?

A

Good faith requires honesty and reasonable commercial standards of fair dealing.

145
Q

Power of appointment with trusts

A

A trust may give the settlor or another beneficiary the power of appointment which enables them to direct where the principal goes at the settlor’s death

146
Q

LLC definition

A

An LLC is an entity that allows for taxation for its owners like a partnership, but has limited liability similar to that of a corporation.

Owners of a LLC are considered members and or managers.

147
Q

If you are doing a question about allocating trust income and trust principal, mention this law:

A

Uniform Principal and Income Act (UPAIA)

148
Q

trust income v trust principal

A

Ordinary expenses and ordinary repairs required by day-to-day wear are allocated to the trust income; whereas extraordinary repairs, those required by an unusual or unforeseen occurrence, are allocated to the principal.

(it would be unusual and unforeseen if I trusted the principal)

149
Q

once the trustee has violated one of the fiduciary duties (loyalty, care, administer) what should you mention

A

the “no further inquiry” rule

150
Q

the liquid assets of a trust are – principal? or income?

A

principal

151
Q

How to deal with unanticipated administrative changes related to trusts

A
  1. Common law- doctrine of equitable deviation when an unanticipated change in circumstances impairs or defeats the initial purpose of the trust.
  2. Under the Uniform Trust Code, “administrative provisions” as to how a trust should be administered may be altered– if unforeseen circumstances–or even if the existing terms would be impracticable, wasteful, or impair the trust’s administration.
152
Q

What about changes to “dispositive” elements of the trust?

A
  1. Common law- equitable deviation WILL NOT APPLY (because this doctrine only applies to administrative elements
  2. Uniform Trust Code- court will find that the trust may be altered, even as to essential dispositive elements, as long as doing so meets the underlying purpose of the trust
153
Q

Many states permit courts to invade the trust _______ for the _____ beneficiary if the court finds that was the _____________.

A

Many states permit courts to invade the trust principal for the income beneficiary if the court finds that was the primary purpose of the trust.

154
Q

when does Cy Pres apply (3 buzz words)

A

The doctrine of Cy Pres applies when the specific charitable purpose indicated by the settlor becomes impractical, unlawful, or impossible to achieve.

155
Q

do you have to demonstrate a charitable intent for cy presenting?

A

until recently, yes. but not anymore.

156
Q

Irrevocable trust modification (by beneficiaries and remainermen consent)

A

material purpose of the trust (First and Second Restatement as well as the Uniform Trust Code) will look at whether CONTINUANCE of the trust is NECESSARy to carry out the material purpose of the trust.

Another approach, the Third Restatement, applies a balancing test where a trust can be terminated even if doing so violates a material purpose so long as the reason for modification outweighs the breach of material purpose.

157
Q

After the trust is terminated by the beneficiaries, does the trustee still owe fiduciary duties?

A

After the termination, the beneficiaries may distribute the trust assets in any manner they choose. They may also the direct the trustee to distribute assets in a certain way and the trustee may follow these directions without violating a fiduciary duty.

158
Q

The issue is whether it was proper for the trustee of a revocable trust to follow Settlor’s direction to let the trust income accumulate rather than distribute.

A

Revocable trust- amendable and modifiable even when the trust instrument does not expressly provide this power. Does not need to follow formalities as a will.

159
Q

power of appointment.

A

A trust may give the settlor OR another beneficiary the POWER OF APPOINTMENT which enables them to direct where the PRINCIPAL goes at the Settlor’s death.

Permissible appointees include only those to whom appointment has been authorized. If a power if ineffectively appointed, then the property passes to the so-called “taker in default” designated by the donor.

160
Q

Elective share

A

Most jurisdictions have statutes under which a surviving spouse’s elective share of the decedent spouse’s estate extends EVEN TO ASSETS PLACED IN A REVOCABLE TRUST by the decedent’s spouse. An elective share aims to prevent a surviving spouse from being disinherited.

The surviving spouse can elect to take the greater of the elective share or the assets that were provided.

161
Q

elective share– relation to illusory and fraudulent transfer doctrines

A

Many states permit a surviving spouse to claim an elective share of assets contained in a revocable trust under either the illusory-transfer doctrine or the fraudulent-transfer doctrine.

The illusory-transfer doctrine allows trust assets to be considered part of a probate estate IF the decedent created a trust over which she exercised TOO MUCH control during her lifetime, and the transfer is economically illusory through the power of revocation.

Another option is the fraudulent transfer doctrine which allows the surviving spouse to access assets in a revocable trust instrument on the legitimate expectation that the assets would have been included in the probate estate but for the transfer of assets to a revocable trust.

162
Q

Hearsay exceptions where declarant needs to be UNAVAILABLE

A

unavailable because he has an STD
Statement against interest
Testimony (former) of not unavailable witness
Dying declaration

163
Q

Hearsay exceptions where unavailability does not matter

A

Evidence Sucks But Please Present Me

Excited Utterance
State of mind 
Business record
Present Sense impression 
Medical diagnosis/treatment (statement for)
Public records e
164
Q

Hearsay exclusions

A 
I'm excluded if I can't poop 
ID
Inconsistent
Consistent
Party (opposing) statements
165
Q

Uniform Principal and Income Act specifies how receipts earned during the admin of a trust should be allocated– either to ___ or to ___

A

income or principal.

Rents and cash dividends- income.
Sale proceeds and stock dividends- principal.

166
Q

If a trust has two or more beneficiaries, the trustee must act ________ in investing, managing, and distributing the trust property.

A

If a trust has two or more beneficiaries, the trustee must act impartially in investing, managing, and distributing the trust property.

Impartiality means that the trustee cannot be influenced by his personal favoritism or animosity toward individual beneficiaries when administering the trust.

167
Q

Types of leases/tenancies

A

tenancy for years
periodic tenancy
tenancy at will
tenancy at sufferance

168
Q

what does a tenancy at sufferance create?

A

terms of the old lease control and it creates a temporary tenancy where the terms of the old lease control until landlord evicts, releases to the tenant, or the tenant voluntarily vacates

169
Q

tenancy at will

A

continues until it is terminated and can be terminated for any reason and without notice

170
Q

Periodic tenancy

A

ongoing, automatically renews,

proper notice to end it

171
Q

tenancy for years

A

fixed amount of year- automatically terminates when the lease term expires

172
Q

When you see a landlord, remember to discuss

A

duties of landlord to keep common areas safe, to fix structure defects, to make repairs, and to follow housing code rules

173
Q

when you see the landlord making the place not habitable, what should you talk about

A

CONSTRUCTIVE eviction

  1. LL caused premises to be unsuitable for their intended purpose
  2. tenant notifies the LL
  3. LL does nothing to fix
  4. T vacates after a reasonable amount of time
174
Q

Assignment (property)

A

An assignment is A COMPLETE TRANSFER of the T’s entire remaining term under he lease. In the assignment, the LL can collect rent from the assignee (privity of estate) OR the original tenant (privity of contract)

175
Q

Sublease

A

transfer of LESS THAN the tenant’s entire remaining term under the lease.

The landlord CAN ONLY COLLECT from the original tenant because there is no privity with the subtenant.

176
Q

How to surrender a lease

A

T returns possession

L consents

177
Q

Abandonment

A

T returns possession WITHOUT the L’s consent

In this situation, T will have to continue paying rent until landlord is able to find a replacement tenant.

178
Q

Duty to mitigate (LL)

A

majority rule- LL has duty to mitigate and make reasonable efforts to re-rent
minority- LL does not have a duty to mitigate

179
Q

Covenants

A

start with burden - WITHVN

writing (to satisfy SOF) 
intent
Touch and concern 
Horizontal Privity 
Vertical Privity
Notice

then do benefit - WIT V

180
Q

Define marketable title

A

free from unreasonable risk of litigation

181
Q

mortgage

A

A mortgage is a security device used to secure repayment of a debt

182
Q

open and notorious- elaborate

A

The adverse possessor must use the property as if they were a true owner

183
Q

General warranty deed

A

The grantor warrant title against all defects, EVEN IF the grantor did not cause the defects

184
Q

Quitclaim deed

A

The grantor makes NO WARRANTIES as to the “health” of the title. Provides the least amount of title protection.

185
Q

6 covenants

A 
PRESENT
R=Right to Convey
S=Seisen (which means grantor is the rightful owner)
En=Encumbrances
FUTURE
Fu=Further Assurances
T_E=Quiet Enjoyment
UU=Warranty
186
Q

Hearsay within hearsay:

A

Where there is hearsay within hearsay (an out of court statement that contains other hearsay), it is inadmissible unless both layers contain an applicable exception.

187
Q

Business Records Exception:

A

The business records exception is a statement made in the regular course of business, and it is in the regular course of business to make such a recording, and it was made by someone having present knowledge and under the duty to make such a record.

188
Q

Unlike settlement offers that require a disputed claim, offers to pay medical expenses

A

Unlike settlement offers that require a disputed claim, offers to pay medical expenses does not require that the statement be made in response to a disputed claim.

189
Q

“Rape Shield” rule

A

The “Rape Shield” rule bars the admission of evidence in any civil or criminal proceeding alleging sexual misconduct that is offered to prove that the victim engaged in other sexual behavior.

HOWEVEr, in CIVIL cases, otherwise inadmissible evidence will be admitted if its probative value substantially outweighs the danger of harm to any victim.

190
Q

if you see a present sense impression, remember to also discuss

A

excited utterance

191
Q

Confrontation Clause rule statement

A

Under the Confrontation Clause of the Sixth Amendment, an accused has the right to be confronted with the witnesses against him.

192
Q

A hearsay statement that falls within an exception will nevertheless not be admitted if

A

if (1) the statement being offered against the accused is testimonial, (2) the witness is unavailable to testify at trial, or (3) the accused has had no opportunity to cross-examine the witness about the statement.

193
Q

testimonial

A

A statement is testimonial when the purpose of the interrogation is to establish past events potentially relevant to a later criminal prosecution.

194
Q

how are a public and private nuisance different

A

A public nuisance is when a person unreasonably interferes with a right that the general public shares in common. A private nuisance is when the plaintiff’s use and enjoyment of her land is interfered with substantially and unreasonably through a thing or activity.

195
Q

When will an extrinsic document be incorporated by reference into a will

A
  1. the doc is in existence at time the will is executed
  2. language of the will sufficiently describes the writing to permit its identification
  3. the will manifests the intent to incorporate the document.

But if Uniform Probate Code - dispense with requirement that the document be in existence at the time that the will was written

196
Q

IIED Bystander

A

knows 3rd party is there, 3P suffers PHYSICAL harm, 3P is closely related

197
Q

IEED Direct

A

extreme and outrageous
severe emotional distress
damages

198
Q

NIEE Direct

A

zone of danger
bodily harm from threat OR
emotional damage from negligence

199
Q

IIED

A

extreme and outrageous
causing severe emotional distress
requires damages

200
Q

NIEED Bystander

A

present at scene (not just zone)
severe emotional distress
close relationship

201
Q

how to remember pure comparative negligence

A

People Can’t Negotiate— ie they are jointly and severally liable

202
Q

reasonable expectation from aerial observation

A

there is none

203
Q

what law governs LLCS

A

Uniform Limited Liability Company Act

204
Q

How to form an LLC

A

certificate of formation filed with state, same formalities as a corporation (SPAWN) except for share info

205
Q

What does SPAWN stand for in corporations and LLCS

A 
formation 
Share info
Promoter info
Address info
Why (purpose) 
Name
206
Q

Member managed versus manager managed LLC

A

The default rule is that an LLC is member managed unless the certificate of formation or operating agreement dictate otherwise

207
Q

An LLC is

A

a type of BA that combines aspects of corporations and partnerships.

208
Q

How is an LLC like a partnership?

A

Each member of an LLC has both actual and apparent authority to bind the LLC to contracts made in the ordinary course of carrying out the biz.

209
Q

What happens when one of the members dissociates from the LLC?

A

LLC will not dissolve. Dissolution would require consult of all members.

So this is different from partnerships where the dissolution process is triggered.

210
Q

POA essay

A

All states have adopted statutes regarding durable healthcare Power of Attorney (POA) documents. A POA enables a principal or person to nominate an agent or decision maker who can make healthcare decisions on the principal’s behalf. Unless the document specifies otherwise, a designated agent is empowered to make any type of healthcare decisions whenever the principal lacks capacity or is unable to make decisions. A duly appointed agent can make these decisions without consulting other relatives of the principal. However, this agent must act in the principal’s best interest keeping the principal’s values in mind. A POA remains effective unless revoked by the principal.

211
Q

Dormant Commerce Clause intro rule statement

A

Even when Congress has not acted, the Commerce Clause of the U.S. Constitution imposes by negative implication a limitation on state laws that discriminate against or unduly burden interstate commerce. This is known as the Dormant Commerce Clause. Where the regulation is discriminatory either on its face or in practical effect, it is subject to strict scrutiny and is only permitted if it is necessary to achieve an important noneconomic governmental interest. The state must show no less reasonable nondiscriminatory alternatives could advance the state’s interest. Even if not discriminatory, state laws that impact interstate commerce can be invalidated if the burden imposed is clearly excessive in relation to the legitimate in-state benefits.

Worth It (11 decks)

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