final Flashcards
What language raises a presumption of testamentary intent?
language such as “This is my last will” raises a presumption of testamentary intent, but the presumption is rebuttable.
When is extrinsic evidence admissible for determining a will?
Extrinsic evidence is admissible to show testamentary intent, presumably, lack of testamentary intent.
How may a will be revoked?
A will may be revoked by operation of law, a subsequently written instrument, or by physical act
How do you revoke a will by written instrument?
There must be a present intent to revoke and the instrument must be executed with the same formalities as are required for the execution of a will
Can a holographic will revoke a typewritten, attested will?
If the state recognizes holographic wills, a valid holographic will may revoke a typewritten, attested will
What acts generally are sufficient to revoke a will.
Burning, tearing, obliterating, or canceling a material portion of the will
Under common law the act must be shown to have had an actual effect on the will or its language
Under UPC: words of cancellation must be on the will itself but need not touch any of the words of the will
What is a purging statute?
In a common law state, where a interested witness is involved, a purging statute will not void the whole will, rather it will simply void the interest to the beneficiary who is a witness
What are the requirements for a contract to make a will at common law?
at common law, a contract to make a will need not be in writing unless land is involved, some states require a writing for all contracts to make a will.
What are the requirements for a contract to make a will under the UPC?
Under the UPC, a contract to make a will can be established by (1) provisions in the will stating the material provisions of the contract (2) an express reference in a will to the contract and extrinsic evidence proving the terms of the contract or (3) a writing signed by the decedent evidencing the contract
When does the cy pres doctrine apply?
In a will or trust, if the testator/settlor had a general charitable intent and it is impossible or impracticable to use the gift for the purpose indicated, the doctrine of cy pres allows the court to apply the property to another purpose as close as possible to the original one
What are some of a trustee’s fiduciary duties?
(1) Exercise her powers in accordance with the terms of the trust; failure to do so constitutes a breach of trust
(2) Duty to act prudently, diligently, and in good faith
(3) duty of undivided loyalty to the trust and its beneficiaries
Can a beneficiary interfere with the exercise of the trustee’s discretion in a discretionary trust?
No, unless the trustee abuses her power.
Even if a trustee’s power is absolute, a court will interfere if the trustee acts in bad faith or dishonesty
Can a trustee enter transactions with the trust?
No. This is self-dealing. Absent court approval or a contrary provision, a trustee cannot do this.
What can a beneficiary of a trust do if a prohibited transaction takes place?
The beneficiary can (1) set aside the transaction (2) recover the profit made by the trustee or (3) ratify the transaction
What must the trustee do upon termination of the trust?
Upon termination of the trust. the trustee must distribute the property in accordance with the terms of the trust
What is presumed regarding the cy pres doctrine in states that follow the UTC?
UTC states presume general charitable intent
Do courts give full faith and credit to divorce decrees of the courts of sister states?
Yes, if the sister state had proper jurisdiction and the decree is valid in the sister state
What is the jurisdictional requirement for granting a divorce decree?
the jurisdictional requirement is satisfied if one of the spouses is domiciled in the state granting the divorce
There is a rebuttable presumption that the state granting the divorce is the bona fide domicile of the plaintiff
Does an ex parte divorce decree have any effect on disputes over marital property?
NO, unless the property is located in the rendering state. Otherwise such disputes can only be resolved by a court having personal jurisdiction over both of the parties
A court has jurisdiction to initially enter or modify a child custody order or visitation order if the state (1) is the child’s “home state”, or (2) was the child’s home state within the past 6 months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state. What is a child’s “home state”?
The “Home State” is the state in which the child lived with a parent (or person acting as a parent) for at least 6 consecutive months immediately before the commencement of the proceeding (or the state where the child has lived since birth if younger than 6 months old), disregarding temporary absences
What does the Federal Parental Kidnapping Prevention Act require?
Requires states to enforce a custody order of another state, but only if the state entering the custody decree had home state jurisdiction.
What are the jurisdictional standards of the Federal Parental Kidnapping Act?
They are substantially similar to the UCCJEA
What is the standard that applies in awarding custody ?
Courts will apply the best interest of the child standard
What factors are considered in making a custody determination?
(1) Wishes of the parents
(2) wishes of the child
(3) the relationship the child has with parents, siblings, and others
(4) the child’s adjustment to home, school, and other community, and
(5) The mental and physical health of all individuals involved
When is the preference of a child given weight in a custody dispute?
When they are over 12, given great weight
Under 12 given little weight
What is the tender years doctrine?
The tender years doctrine grants custody of a young child to a mother unless she is proven unfit
It is questionable constitutionally because of gender bias
What are a couple big factor courts (random) to consider in granting custody?
Many Courts grant custody to the primary caregivers
Courts don’t like to split up siblings
Who is vested with the power to manage business and affairs of the corporation?
Directors
Directors can act on this power by majority vote at a meeting which a quorum of directors are present
When will a court not second guess a directors decisions?
A court will not second guess a director’s decision If the directors: (1) manage the corporation to the best of their ability in good faith (2) with the care that an ordinarily prudent person in a like position would exercise, and (3) in a manner that they reasonably believe is in the best interest of the corporation
What is the business judgment rule?
Under the BJR, there is a presumption that directors’ decisions are (1) made in good faith, and (2) in the best interest of the corporation
Who has the burden of proof when challenging a director’s actions?
the challenger
What can a director do to exercise their duty of care?
A director can rely on reports from corporate officers whom the director reasonably believes to be reliable and competent, and corporate outsides as to matters that the director reasonably believes to be within the outsiders professional competence
What does a director’s duty of loyalty prohibit?
A director’s duty of loyalty prohibits the directors from profiting at the expense of the corporation
when is a director self-dealing transaction not set aside?
A director self-dealing transaction is not set aside if (1) the director discloses all of the material facts of the transaction and the deal is approved by a disinterested majority of the directors or (2) shareholders or (3) the deal is fair to the corporation
Does a director who is involved in a self dealing transaction get to vote on the transaction?
No, and it might also invalidate the votes of the directors she controls
In a secured transaction problem regarding self help
first state ____
“If a debtor defaults on a secured transaction the creditor can repossess the collateral”
When can a secured party use self help to repossess collateral?
A secured party can use self help to repossess collateral as long as they don’t breach the peace
Define breach of the peace
Breach of the peace isn’t defined by Article 9. However, repossession over the debtor’s protest usually qualifies
Can a debtor waive the right to redeem collateral?
A debtor can waive the right to redeem collateral only after they have defaulted
(if the security agreement says they waive the right to redemption it is going to be void because it is before default)
Acceleration clauses in security agreements are permissible. However ___
if the debtor offers to pay the entire amount due, the creditor MUST allow debtor to redeem
What happens if a secured party fails to follow rules of article 9?
They are prohibited from collecting on any deficiency if any article 9 rule is broken unless the secured party can show that the breach did not cause the deficiency
(example-security agreement asking for waiver of redemption before default, or not giving back collateral after acceleration clause and they offered to pay in full))
Does a party need to disclose evidence if it has not been made in a discovery request?
A party must provide to other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to support its claim or defense-no need to disclose things relevant to the adverse parties claim or defense absent a request
What can the grantor of an easement do?
The grantor of an easement can limit the grantee’s use of the land
When does the attorney-client privilege apply between communications of a doctor and patient rather than the doctor patient privilege?
If the attorney hires the doctor for the purposes of examining the client then the doctor is an agent of the attorney and the attorney-client privilege applies.
This is true even if plaintiff puts his injury at issue
What are the limits on congress’s spending?
Congress may spend for any public purpose.
A tax measure will be upheld if it bears a reasonable relationship to revenue production
What do commercial suppliers have to anticipate in strict liability claims?
Courts hold that commercial suppliers must anticipate reasonably foreseeable uses of the product even if it is a misuse
Who has standing to challenge a stop of a car on 4th amendment grounds?
Every person in the car
If a stop of a car is unlawful, but the arrest is lawful, will evidence obtained at this time be admitted?
No-fruit of the poisonous tree doctrine
How can intent of parties to carry on as co-owners of a business be shown?
Intent can be implied from the conduct of the partners
What will raise a presumption that a partnership has formed?
the sharing of profits raises a presumption that a partnership has formed
What should you do when analyzing an authority issue
Whenever authority is a rule you’re addressing, always state the full rule for actual and apparent authority
Are partners agents of the partnership?
Yes, every partner is an agent of the partnership and the acts of a partner will bind the partnership if the partner acted with authority.
What is actual authority in a partnership?
Actual authority is the authority a partner reasonably believes he has based on the communications between the partnership and the partner.
What type of authority does a partner have for acts within the ordinary course of business?
If an act is within the ordinary course of business, the partners may confer actual authority by a majority vote
Is hiring an employee to perform partnership business within the ordinary course of the partnership business?
Yes
When does a partner acting in the ordinary course of business not bind the partnership?
the act of a partner in the ordinary course of the partnership business will bind the partnership unless the partner has no actual authority and the third party with whom the partner was dealing knew or received notice that the partner lacked authority
Are partners personally liable for the obligations of the partnership?
Partners are jointly and severally liable for all obligations of the partnership
Will a judgment personally bind a partner who has not been served?
No.
What must a judgment creditor do before they seek satisfaction of the judgment from the partners personally?
They must first seek satisfaction from the partnership and then from the partners personally to the extent that the judgment was not covered by the partnership
What is the Full Faith and Credit for Child Support Orders Act?
The FFCCSO Act holds that full faith and credit must be given to another court’s child support order if the court had jurisdiction over the matter and the parties, and the parties had reasonable notice and an opportunity to be heard.
What does the Uniform Interstate Family Support Act hold?
The UIFSA allows a court to ask another court which has jurisdiction over the child support order, to enforce or modify the order they issued
Can a new jurisdiction modify a custody order if one of the parties continues to reside in the issuing state ?
The FPKPA prohibits a state from modifying a custody order if one of the parties continues to reside in the issuing state and under the state’s laws, the court continues to have and does not decline jurisdiction
What court has jurisdiction over a custody matter if a party moves?
The UCCJEA holds that the court that made the intiial custody determination has continuing, exclusive jurisdiction over the matter until that court determines that neither the child nor the parents continue to reside in the state, or the child no longer has a significant connection with the state and substantial evidence relating to the child’s care, protection, training, or personal relationships is no longer available in the state
When will a court warrant a modification of a custody order?
A court will warrant a modification of a custody order if there is a substantial material change of circumstances warranting the modification
removal of a child from the jurisdiction is an example
If a parent wrongfully removes a child from the jurisdiction will it weigh against them?
Yes. They should ask for modification before and show why such a move is in the child’s best interest
When will a court modify child support?
A court will modify child support if there is a substantial change of circumstances
What is the limitation on congress’s power to investigate?
Congress is limited to investigate on matters for which it may legislate
What must a party show when suing an attorney for malpractice?
(1) the attorney’s negligence and (2) that they would have won without the negligence
What is required to validly conduct a shareholder meeting?
A quorum must be present to conduct a shareholder meeting
What does a quorum require?
If the articles and bylaws are silent, a quorum requires the presence, in person or by proxy, of a majority of the OUTSTANDING SHARES (not shareholders) entitled to vote at the meeting
Ordinarily, failing to raise defects related to service of process in the party’s first answer or motion to dismiss waives the defect. Why will the court allow an amendment?
In some situations, such as the amendment is only a couple days later, and the plaintiff has not yet responded to the motion,
The court will allow it because (1) The federal rules should be construed to do justice as between the parties (2) the rules permit liberal amendments of pleadings when no prejudice or delay would occur. (3) and no prejudice or delay could occur if the court were to allow the motion to be amended
If the issue is: under Erie, whether a state’s choice of law rules are substantive or procedural, what should you state in your rule statement?
“Under Erie, a federal court must apply the substantive law of the state in which it sits but it is free to apply federal procedural law.”
Then say “it is well established by the Supreme Court precedent (klaxon) that choice of law rules are substantive for Erie purposes”
Then: “The federal court must apply the state choice of law rules in which it sits”
Can parties agree to a choice of law provision in a contract?
Yes and the provisions will govern the contract.
exception: If the chosen state has no substantial relationship to the parties of the transaction, and there is no other reasonable basis for the parties’ choice, the choice of law provisions will be invalidated.
what is another example of when a choice of law provision will be invalidated?
A choice of law provision will be invalidated if:
(1) it is contrary to a fundamental policy of a state with a materially greater interest than the chosen state in the determination of the particular issue; and
(2)which under the “most significant relationship” test would be the state of the applicable law in the absence of an effective choice of law by the parties.
If a class member in a “common question” class action does not opt out at first, will they be able to opt out later?
A judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out
Can a person who negligently puts themself in peril be sued by a rescuer if the rescuer is injured?
Yes if the rescuer did not act reckless
If a seller assigns their rights to payment for a contract to a third party, and the buyer knows of the assignment, can the buyer pay the seller instead of the third party?
NO, they could be held liable even if they pay the seller. They must pay the third party
Under common law burglary, when must the defendant have intent?
The defendant’s intent must arise at the time of entry
When is a structure a dwelling?
A structure is a dwelling if it is used regularly for sleeping-it doesn’t matter if there is a store on the first floor-still a dwelling
If someone asserts incapacity as a defense for adverse possession, when must the incapacity have arose?
the party seeking to assert incapacity must have been incapacitated on the day adverse possession started.
If a person promises not to sue on a claim in exchange for something, and it turns out it was a mistake of fact that made both parties enter the agreement, is it valid?
Yes it is still good consideration to support the agreement even if the claim turns out to be invalid.
Are parents vicariously liable for their children’s intentional torts?
NO
However, they can be held negligent if they had reason to know their child would commit such a tort
When may intoxication be a viable defense for a crime?
If the crime required intent and they were so fucked up they could not form the intent to commit the crime
Whether a lease is intended for security depends on what?
it depends on the economic realities of the transaction
A transaction will be deemed to create a security interest rather than a lease if (1)the rental obligation is not terminable by the lessee and (2) at the end of the lease, the lessee had an option to purchase the goods
what remedies are available to a secured creditor after the debtor’s default?
On the debtor’s default, a secured party may repossess and sell the collateral securing the debt
How does repossession and sale affect junior interests?
If a secured party sells the collateral after default by the debtor, all subordinate security interests in the collateral are discharged.
How can a witness’s character for truthfulness be attacked by introduction of a crime?
A witness’s character for truthfulness may be attacked by (1) any felony or (2) any crime, if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement
When does a court have discretion to exclude evidence of a past crime?
If a felony is not one that involves dishonesty or false statement, the court has discretion to exclude it if it fails the rule 403 balancing test (if the probative value of introducing the evidence is substantially outweighed by the danger of unfair prejudice, confusing the issues, etc).
Does a trial court have discretion to disallow impeachment by convictions of crimes involving acts of dishonesty or false statement?
No, a trial court does not have discretion they must admit it.
Can a perjury conviction be too remote to admit?
Yes
When can a court exclude a prior criminal conviction that is otherwise admissible to impeach a witness?
If it fails the rule 403 balancing test (ex-because of its inflammatory nature)
when doing this analyze before the balancing test why it would be admissible otherwise
“felony conviction, not too remote, act of dishonesty/not act of dishonesty so court discretion)
When can a witness be impeached by prior act of misconduct that did not result in a conviction?
A witness may be cross examined as to any prior act of misconduct that is probative of truthfulness (i.e. an act of deceit or lying)
Counsel must have a good faith basis for such inquiry
Can a judge call a witness and examine witnesses?
The court is allowed to call a witness and examine any of the witnesses called by either party. If a judge calls a witness the parties are allowed to cross examine that witness.
Can an attorney impeach a witness with a crime that is probative of truthfulness if the witness has not been convicted?
Yes, if they act in good faith when asking the question
Beware of answers that state they can because the witness was convicted. Those answers will likely be wrong and the right answer will probably be that the attorney acted in good faith when asking.
Can a local or state government set up their own postal service?
NO-this violates the federal postal monopoly-they would need consent from congress
An attorney for the US Dept of Health is fired after expressing her concern that her office has not instated a no smoking policy. what interest does she have?
She has a liberty interest. The court must balance the attorney’s rights as a citizen to comment on a matter of public concern that is not made related to her official duties.
When does a public employee have a property interest in their job?
A public employee has a property interest in their job if they are subject to removal for “cause”.
The employee will need to be given notice of the charges against her that are the basis of her job termination, and pre-termination opportunity to respond to those charges.
What is res ipsa loquitor?
Res ipsa loquitor is appropriate where an injury does not usually occur unless someone was negligent and the plaintiff does not know which of the defendants caused the injury.
Usually not available if more than one person may have been in control of the instrumentality that caused the injury. BUT it is available if someone had the power or control over the site of the injury
In a defamation suit, who will have a qualified privilege to speak on someones professional competence?
A former employer has a qualified privilege. But they cannot be reckless or act with malice.
Is mere regulation of property a taking?
No, and the government will not have to compensate for a mere regulation
(example; requirement for floodlightS)
When will a taking almost always be found?
A taking will usually be found if there is an actual physical appropriation or destruction of a person’s property
When will a regulation constitute a taking?
A regulation will constitute a taking if:
(1) It amounts to a physical appropriation
(2) denies an owner of all economic use, or
(3) unreasonably interferes with distinct investment-backed expectations of the owner
Can a city force landowners to convey interests in their land to the city in exchange for permission to build improvements on the property?
No. These usually violate the 5th amendment takings. clause.
Exception: The city can impose such a requirement if (1) a close nexus exists and (2) proportionality exists
Define close nexus in regards to a takings issue
Close nexus means the government can show that the condition relates to a legitimate government interest
Define “proportionality” in regards to a takings issue
Proportionality exists if the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupational rights
these problems are usually conditions cities require for dealing with permits
Example: City ordinance regarding surveillance equipment because increased patronage “might” increase crime and the surveillance “might” alleviate crime is too speculative
What is required to assign a contract?
To assign a contract, a party must manifest an intent to transfer his rights under the contract to an assignee
Can a contract be assigned orally?
Yes
Can most contractual rights be assigned?
Yes, unless
1.the contract forbids assignment,
- assignment is forbidden by law
- assignment would substantially change the obligor’s duty of risk; OR
- it is a personal service contract where the service is unique
are contracts for unique personal services assignable?
No, however money due under a personal service contract are assignable.
What is an incidental third party beneficiary
One that will benefit from the contract but was not intended by the parties to benefit
they have no rights under the contract
What is a delegation?
A delegation occurs when a party to a contract manifests a present intention to transfer duties under the contract to another party
note-pay attention if assigning a contract right results in delegating the duty to pay
What happens when a party to a contract delegates a duty?
The delegator becomes secondarily liable, as a surety, for performance of the duty if the delegate does not perform
They delegator will not be a surety if a novation occurred.
can a price quotation be considered an offer?
Yes, if given in response to a specific inquiry.
“how much for the Iphone 8? $100.” prob an offer
If there is a unilateral mistake in a contract, will the contract be enforceable?
Yes, unless the nonmistaken party knew or should have know of the mistake.
Once a buyer accepts goods, can he reject the goods for nonconformity?
Generally no, his remedy will be a suit for damages.
Can police with a valid search warrant search persons found on the premises that are not named in the warrant?
Only if they have probable cause to arrest the person, and the search of them is incident to a lawful arrest.
pay attention to if the search happens before the arrest
(example: the woman sleeping in the bed when the police searched her purse before arresting her)
In a wills’ issue, that has specific bequest what should you state as part of you rule statement?
You should state:
“A specific bequest is a gift of property that is particularly designated and is to be satisfied only by the receipt of the particular property described”
also any other law regarding the type of property and all that Jazz
Do courts consider bequests of stocks to be general or specific bequests?
Courts usually consider bequests of stocks to be specific bequests of property
What is ademption?
The doctrine of ademption holds that when specifically bequeathed property is not in the Testator’s estate at death, the bequest is adeemed, meaning it fails
How do courts decide ademption issues?
Courts decide ademption issues two ways:
First, a court may apply the objective test, simply whether the property is a part of testator’s estate, and do not consider Testator’s intent.
the second way is the intent theory of ademption which is more lenient, and provides that a beneficiary is entitled to substitute property owned by the testator if the beneficiary can prove that the testator intended the beneficiary to take the substituted property
Under the UPC, what happens if property bequeathed in a will is replaced by different property during testator’s life time?
(ex: A house sold that was bequeathed and the proceeds are used to buy a new home)
Under the UPC, the beneficiary has a right to the replacement property
How should a will’s language be construed?
A will’s language should be construed upon the circumstances and properties as they exist at the time of the testator’s death. (“a will speaks at the time of death”)
What happens if a beneficiary disclaims their interest in a will?
It passes as if they predeceased the testator
If there is disclaimed property, analyze what happens to the property through anti-lapse statutes
Do Anti-lapse statutes apply to Wills or Trust questions?
Anti-lapse statutes apply to wills questions, however it will apply to a trust question in limited circumstances.
What implied warranties apply to contracts for a builder’s sale of new residential building ?
The implied warranty of fitness or quality applies to contracts for a builder’s sale of any new residential building
It holds that the new house to be designed and constructed in a reasonable workmanlike manner and suitable for human habitation
What is a latent defect?
A latent defect is a fault in the property that could not have been discovered by reasonably thorough inspection before the sale.
what is the difference between a grantee taking subject to a mortgage and a grantee assuming a mortgage?
Subject to a mortgage the grantor remains liable
Assuming the mortgage, the grantee becomes liable and the grantor is a surety
How does a grantee assume a mortgage?
Majority rule: The grantee signs an assumption agreement, promising to pay the mortgage loan
- A grantee who does not expressly assume the mortgage does not become personally liable on the loan
- but they can take his land (shrug)
Minority rule: A grantee can impliedly assume a mortgage-(do the analysis where adding the balance of the mortgage to the sale of the property)
What warranties accompany a quitclaim deed?
A quitclaim deed contains no warranties, and is simply a release of whatever interest the grantor has in the property if any.
What is an equitable servitude?
An equitable servitude is a covenant enforced in equity against successors through injunctive relief
Privity is not required.
the person suing will be seeking an injunction not damages
If a defendant is on trial for a crime not involving honesty, can he submit character evidence of his character to be truthful if he is not testifying?
No, because if he is not testifying his character is not at issue.
Can congress compel the president to deploy the armed forces?
No the president is the commander in chief and this violates separation of powers.
Congress can declare war. Not deploy troops to enforce shit.
What prohibits a federal court from hearing a case that is pending in state court?
Nothing unless an abstention doctrine applies.
The primary reason a federal court will abstain from hearing a case is when the constitutionality of a state statute is at issue.
-The court will retain jurisdiction over the case but defer ruling on the state constitutional issue until the state court rules on the case
What are the requirements for class actions under the federal rules?
(1) The class must be so numerous that joinder of all members is impracticable
(2) The case must have common questions of law or fact
(3)The named party's interest must be typical of the class and
(4) Named party must be able to fairly and adequately represent the absent class member
(5) The class action must fall into a 23(b) category (separate flash card)
What are the 23(b) categories for class actions?
(1) Risk of inconsistent results or risk that separate trials would impair rights of all plaintiffs;
(2) Defendant must have acted or refused to act on grounds applicable to the whole class and injunctive or declaratory relief would be appropriate
(3) Common questions of law or fact predominate and class action is superior method of adjudication
If there is a possibility that someone is contributorily negligent you should….
Mention that states that apply pure comparative negligence will simply reduce the amount of damages the plaintiff can recover
If a tort question asks you to determine landowner liability you should state….
A landowner/occupier’s duty to those on their premises requires a determination of the legal status of the plaintiff (trespasser, licensee, invitee)
Then state that most states got rid of the distinction between licensees and invitees, and simply apply a reasonable person standard. But that the trespasser standard still exists.
What are the requirements to establish an attractive nuisance?
(1) There is a dangerous condition present on the land of which the owner is or should be aware
(2) the owner knows or should know that young person frequent the vicinity of this dangerous condition
(3) the conditions is likely to cause injury
(4) the expense of remedying the situation is slight compared to the magnitude of the risk
What is the standard of care owed if there is an attractive nuisance?
the landowner must exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by the artificial condition on his property.
If there is a rescuer problem state…
“No duty is imposed on a person to come to the aid of another absent a special relationship between the parties”
“If a person gratuitously comes to the aid of another, the actor must exercise due care to providing assistance, and must not leave the person in a worse position than she found him”
When must a motion to remand back to state court be filed?
It must be filed within 30 days of the notice of removal
(even if the removal was not timely)
-the only exception is if the reason for removal is lack of subject matter jurisdiction
Are insurance policies admissible in discovery?
Yes, they are part of initial disclosures.
What is the unilateral theory of conspiracy?
Only one party in the conspiracy is required to have general criminal intent
Can a person be guilty of conspiracy if the violated statute is made to protect them?
No. (example: sale of alcohol to minor case)
What is the standard for capacity to make a will?
The standard for capacity to make a will is quite low. One may have capacity to make a will even though one lacks capacity to make a contract.
The law presumes that every person is of sound mind unless the contrary is shown.
When is testamentary capacity measured?
Testamentary capacity is measured at the time the will is executed
Who bears the burden of proof of contesting a will?
the contestant
What must a will contestant for lack of capacity show?
The contestant must show that when the will was executed the testator did not have sufficient capacity to:
(1) understand the nature of his act (that he was writing a will)
(2) Know the nature and character of his property
(3) Know the objects of his bounty(closest living relatives) AND
(4) relate these factors to formulate a disposition of property according to a plan
Who bears the burden of proving undue influence for executing a will?
the contestant
What must a contestant show that is asserting that Testator was subject to undue influence?
The contestant must show that:
(1) specific acts of influence were exerted
(2) the effect of the influence was to over power the mind and free will of the testator AND
(3) the product of the influence was the will or gift that would not have been made but for the influence
Is a party’s opportunity to exert influence and a testator’s susceptibility to influence sufficient to establish undue influence?
No, they must actually exert
What must a will contestant show to establish fraud?
The contestant must show:
(1) there was a knowingly false representation of material fact
(2) The representation was made to induce the testator to write a will in a particular way AND
(3) the testator reasonably believed and relied on the statements in making the will
What is a no-contest clause?
A no contest clause is a clause in a will that states anyone who contests the will wont receive what is gifted to them from the will
They are enforceable in most states. However, the beneficiary challenging the will does not forfeit their legacy if the court finds that they challenged the will in good faith and on the basis of probable clause.
How can a trust be modified?
A trust can be modified by the beneficiaries if all beneficiaries consent and the modification will not interfere with a material purpose of the trust.
Can a court modify a trust due to changed circumstances?
YES under the doctrine of equitable deviation:
At common law, a court may authorize or direct a trustee to deviate from the administrative terms of a trust (including permitting acts that are forbidden by the trust instrument) if the settlor did not know or anticipate the new circumstances and compliance with the terms of the trust would defeat or substantially impair accomplishment of the trust purposes.
If a question looks at modifying a trust due to unanticipated circumstances, determine what interest in the trust is primary and which is secondary. Then what happens under the UTC?
Under the UTC, if an unanticipated circumstance threatens the purposes of the trust, the court will permit modification.
What type of inspections/searches don’t require a warrant or even probable cause?
A search of a parolee’s home even absent probable cause does not violate the 4th amendment if a statute provides for such searches.
What authority does a partner have to bind the partnership in dealings with third parties in the absence of an express agreement defining such authority?
Partners have an equal right to manage the business of the partnership, absent an agreement otherwise.
A particular act within the ordinary course of partnership business must be approved by a majority of partners.
What fiduciary duties does a partner owe?
A partner must account for profits, property, opportunities, or other benefits derived by him in conjunction with the partnership business and must not compete with the partnership
When is a partner dissociated from a partnership?
A partner is dissociated from a partnership upon notice of the partner’s express will to withdraw as a partner
What is an at will partnership?
An at will partnership is the type of partnership created when no definite term or particular understanding is specified
What happens if a partnership continues after a partner dissociates?
The partnership must buy out the dissociated partner’s interest
Does dissolution terminate the authority of a partner to act as an agent of the partnership?
Absent an agreement to the contrary, the dissolution terminates the authority of a partner to act as an agent except for purposes of winding up (wrongful dissolution cant participate in winding up though)
Does a partnership wind up a new contract?
No, new contracts are considered new business and are not appropriate for winding up
What are the rules regarding legal parents and artificial insemination?
The spouse of a woman who gives birth to a child through artificial insemination is the child’s legal parent, unless within 2 years after learning of the child’s birth he commences an action in which it is determined that he did not consent to the assisted reproduction.
what is the rule for custody for parent v. non-parent?
courts favor parent unless it is shown that the parent is unfit.
who is the legal father of a child born during wedlock as a result of the wife cheating?
There is a presumption that the child of a married woman is the child of her spouse.
However, this presumption can be rebutted. Paternity can be rebutted by a preponderance of the evidence in some states and clear and convincing evidence in others.
What happens if a child is left with a third party to rear?
Then the best interest of the child test should apply.
Do majority shareholders owe minority shareholders fiduciary duties?
Generally no. Shareholders are free to act for their own benefit.
Exception: A Controlling shareholder must refrain from using his control to obtain a special advantage or to cause the corporation to take action that unfairly prejudices the minority shareholders
A controlling shareholder has a duty to disclose material information to the minority shareholders
When analyzing a duty of care question for corporations, you should look for….
How long did the discussion take regarding the decision? Did they seek expert opinion? Any reason the experts may be bias?
What is required for a security interest to attach?
A security interest attaches once:
(1) the parties agree to create a security interest, which may be evidenced by the debtor signing a security agreement describing the collateral;
(2) the creditor gives value; and
(3) the debtor has rights in the collateral
What is inventory?
Inventory are goods held for sale or lease
what should you do with the classified collateral in a secured transactions problem?
You should state why the collateral is classified in such a way
Example: this is a consumer good because it is used for personal, family, or household purposes.
Does a buyer in the ordinary course take free of nonpossessory security interests?
A BIOC takes free of non-possessory security interests created by his seller unless he knows the sale violates a security agreement
What is a PMSI?
A PMSI arises when :
(1) a creditor sells goods to a debtor on credit and
(2) retains a security interest in the goods for the purchase price
Does a consumer who buys goods from another consumer take free of any security interests?
A consumer who buys goods from another consumer before a financing statement has been filed, and without knowledge of the security interest, takes the goods free of the security interest
For the former testimony exception to hearsay, may a party ‘s deposition testimony of a prior law suit be admitted into evidence?
YES If the statement was made under oath at a prior deposition or proceeding.; AND
There must be a sufficient similarity of parties and issues;
The exception applies, however, only if the declarant is unavailable to testify
What is the hearsay exception for excited utterances?
An excited utterance is a statement relating to a startling event, made while under the stress or the excitement caused by the startling event.
What does the hearsay exception for statements of physical condition for diagnosis or treatment require?
the statement must be made to medical personnel (includes anyone involved in treatment or diagnosis)
Statement must be pertinent to assisting in the diagnosis or treatment of a condition (related statements about an injury causing event are usually inadmissible-Example: statement by declarant to an emergency room doctor that she was shot will be admissible but the identity of the shooter will not, as it is not pertinent to treatment)
When a question has a confrontation clause issue state:…
“Under the confrontation clause, an accused has the right to be confronted by the witness against him”
“A hearsay statement will not be admitted when (1) the statement is offered against the accused in a criminal case; (2) the declarant is unavailable (3) the statement was testimonial in nature; and (4) the accused had no opportunity to cross-examine the declarant’s testimony prior to trial”
When are statements testimonial for purposes of the confrontation clause?
When the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution, statements are testimonial
When can congress act pursuant to its 14th amendment power to prohibit (non-suspect class) discrimination?
Section 5 of the 14th amendment is an enabling clause giving congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment.
Under section 5 Congress may not expand existing constitutional rights or create new ones.
Congress may only enact laws to prevent or remedy violations of rights already recognized by the courts.
What is section 5 of the 14th amendment?
Section 5 of the 14th amendment is the enabling clause of the 14th amendment which states“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
What does the enabling clause (sec. 5) of the 14th amendment do?
Section 5 of the 14th amendment gives congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment
Can congress expand existing constitutional rights or create new ones under section 5 of the 14th amendment?
No, they can only enact laws to prevent or remedy violations of rights already recognized by courts.
If congress uses its power under section 5 of the 14th amendment, what must be shown for the law to be valid?
To be valid, laws must be congruent and proportional to solving a history or pattern of violations of such a right.
Are declarations of then existing physical conditions admissible?
Declarations of existing physical condition are admissible as an exception to the hearsay rule. Under the Federal Rules, these declarations are admissible even though not made in the context of medical diagnosis or treatment.
Example: In a medical malpractice action, the plaintiff sought to have her neighbor testify that, the day after receiving treatment on her back from the defendant, the plaintiff told the neighbor that her back was getting worse.
The neighbor’s testimony is admissible under the then existing physical condition exception
Are statements made to show the effect on the listener an exception to hearsay?
No they simply are just not hearsay (its not being offered for the truth of the matter asserted, its being offered to show its effect on the listener).
Is testimony of a declarant’s then existing state of mind admissible?
Yes under the present state of mind exception to the hearsay rule.
A statement of a declarant’s then-existing state of mind is admissible as circumstantial evidence tending to show that the intent was carried out.
Example:
The defendant was on trial for statutory rape. He denied that the alleged victim was even in his presence on the night of the alleged offense, when he was working as the night clerk at a convenience store. The prosecution offers to have a witness testify that, in a phone conversation on the evening in question, the victim, who is available to testify at the trial, said that she had to leave because the defendant wanted her to stop by the store while he was working. The defense objects to the proposed testimony
Admissible under the present state of mind exception as circumstantial evidence that she was with the defendant that nigh
What is the first thing you write for every contracts essay question?
Whether the contract is governed by the common law or the UCC
What is the rule of law you write for contracts for the sale of goods?
Contracts for the sale of goods are governed by Article 2 of the UCC.
“Goods” are all things movable at the time they are identified
A (insert good) is movable; thus, this is a contract for the sale of goods governed by article 2
What can a party do if he reasonably believes the other party in a contract will not perform?
He may demand assurances that the performance will be forthcoming at the proper time
And until he receives such assurances he may suspend his own performance
Must a demand for assurances be in writing?
Yes
when must adequate assurances be given?
Within a reasonable time
What happens if a party fails to give adequate assurances?
If proper assurances are not given within a reasonable time, not to exceed 30 days, the party demanding assurances may treat the contract as repudiated
What remedies does the non-repudiating party have?
Repudiation gives rise to several possibilities for the non-repudiating party including (1) treating it as a total breach and sue immediately, (2) suspending his own performance and waiting to sue until the performance date (3) treating the repudiation as an offer to rescind and treating the contract as discharged, or (4) ignoring the repudiation and urging the promisee to perform
Can a repudiating party withdraw the repudiation?
Yes at any time before his performance is due.
Exception: A repudiating party may not withdraw his repudiation if the other party has (1) canceled the contract (2) materially changed his position in reliance on the repudiation or (3) otherwise indicated that he considers the repudiation final
How can a repudiating party withdraw the repudiation?
In any manner that clearly indicates an intention to perform but must include any assurances justifiably demanded
What is the effect of a party’s retraction of their repudiation?
A retraction of a party’s repudiation will reinstate the repudiating party’s rights under the contract
What is the covenant of quiet enjoyment?
The covenant of quiet enjoyment is when the grantor promises the grantee will not be disturbed by a third party’s claim of lawful title
What is required for a tenant to claim constructive eviction?
(1) the landlord or someone acting for the landlord caused the injury
(2) The breach substantially and materially deprived the tenant of her use and enjoyment of the premises
(3) the tenant gave the landlord notice and a reasonable time to repair; and
(4) the tenant then vacated the property within a reasonable time
Does a landlord have a common law duty to repair or maintain the premises?
No, a duty to repair or maintain may be provided for in a lease or required by statute or by implied warranty of habitability
What can a landlord do if a tenant unjustifiably abandons the property?
The landlord may do nothing or she may repossess
If a landlord repossesses or relets the premises, what is the tenant’s liability?
The tenant’s liability depends on whether the landlord has accepted a surrender on the premises
When must a surrender be in writing?
A surrender must be in writing if the unexpired term is more than one year
what is a tenant liable for if a surrender is not found?
If surrender is not found, the tenant remains liable for the difference between the promised rent and the fair rental value of the property
What is a tenant liable for if surrender is found?
If surrender is found, the abandoning tenant is free from any rent liability accruing after abandonment
What is a landlord entitled to if they fail to mitigate their damages after a improper termination of a lease?
If the landlord could have mitigated but does not attempt to do so, her recovery against the tenant will be reduced accordingly
When is a killing reduced to voluntary manslaughter?
A killing that ordinarily would be murder is reduced to voluntary manslaughter when the killing is committed under the stress of adequate provocation (e.g., being subjected to a serious battery, being confronted with deadly force, or discovering one’s spouse in bed with another person).
What is double jeopardy?
The 5th amendment guarantees the right to be free of double jeopardy for the same offense
Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes.
Can a jury instruction presume that an element of a crime has been met?
No, a mandatory presumption that shifts the burden of proof to the defendant violates the 14th amendment’s requirement that the state prove every element of a crime beyond a reasonable doubt.
What needs to happen if substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts are proved?
Then additional proof of the facts must be submitted to the jury and proved beyond a reasonable doubt
If a judge makes the determination that additional facts were proved, the defendant’s right to a jury trial is violated
When dealing with a final judgment or whether something is immediately appealable issue, you should state…
“Under the Federal Rules, when multiple claims of multiple parties are involved in an action, the court may enter a final judgment as to fewer than all of the claims or parties on (1) an express determination that there is no just reason for delay and (2) an express direction for the entry of judgment”
“Unless the trial judge makes the express determination, the order determining the merits of fewer than all of the claims or dismissing fewer than all of the parties is not a final judgment and is not appealable.”
When is an order appealable?
Only a final order is ordinarily appealable. A final order is one that disposes of the whole case.
What is the difference between wrongful birth and wrongful life actions?
Wrongful birth is brought by parents. Wrongful life is brought by the child.
When does jeopardy attach?
When the jury is empanaled and sworn in.
Exception: If judge holds a mistrial, then jeopardy wont attach. However, if judge holds a mistrial wrongfully, then jeopardy is attached.
If a question asks if a court will have jurisdiction for an equitable/injunction claim and the case is filed in state court…
REMEMBER that the 7th amendment does not apply, and that an answer stating the 7th amendment does something will be wrong
When does the best evidence rule apply?
The best evidence rule applies only to attempts to prove the contents of a written document. It does not apply when a witness merely refers to the existence of a writing or the date of the writing.
What is the duty of care for a professional (e.g. doctor)?
A person who is a professional is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing.
For doctors courts will apply a national standard of care to evaluate their conduct.
What is part of a doctor’s standard of care when proposing a course of treatment?
The doctor has a duty to provide the patient with enough information about risks to enable the patient to make an informed consent to the treatment
When can a product be the basis of a products liability action?
When the product is in a defective condition unreasonably dangerous to users
What is a manufacturing defect?
A manufacturing defect is when the product supplied is different than the way it should have been supplied
When is a product deemed defective?
A product is deemed defective if it was dangerous beyond the expectation of the ordinary consumer
Remember, if it is a products liability issue, mention the implied warranty of merchantability-the rule of law states:
To establish an action based on breach of implied warranty of merchantability under the UCC, the plaintiff must show that (1) the defendant is a merchant who deals in the kind of goods sold (2) the goods were not fit for the ordinary purposes that such goods are sold for (3) The goods were the actual and proximate cause of injury to the plaintiff and (4) the plaintiff suffered economic loss or damages to person or property
In products liability, the plaintiff need not show that the commercial supplier were at fault, they must show…
that they supplied the defective product
Remember to mention the alternative liability approach with strict liability claims
Alternative liability is a legal doctrine that allows a plaintiff to shift the burden of proving causation of her injury to multiple defendants, even though only one of them could have been responsible. (summers v. tice)
Elements:
(1) all possible tortfeasors are before the court;
(2) all have breached a duty toward the plaintiff;
(3) the conduct of one of the defendants has caused plaintiff’s injuries and;
(4) the defendants, as a group, have better access to information concerning the incident than does the plaintiff.
What is the alternative liability approach for market share damages ?
First, the defendants in court must constitute substantially all of the market.
Second, the products must be fungible (i.e. interchangeable—they must be of the same composition).
Third, the defendants (potential tortfeasors) must all have been in the market within the specific timeframe surrounding the incident.
Fourth, the inability to point to a specific tortfeasor must not be the plaintiff’s fault.
What is marketable title?
Marketable title is title reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. Generally, this means an unencumbered fee simple with good record title. Every land sale contract contains an implied covenant that the seller will provide marketable title at closing. While it need not be perfect title, it must be free from questions that might present an unreasonable risk of litigation.
What is integration?
Integration of a will is the process of embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution
What must be shown to prove that integration happened?
The will proponent must show:
(1) That the pages were present when the will was executed and
(2) Were intended by the testator to be part of the will.
What is admissible to prove integration requirements?
Witness testimony and other extrinsic evidence
When are intent and presence presumed for purposes of integration?
Intent and presence are presumed when there is a physical connection of the pages, there is an internal coherence by provisions running from one page to the next, or the pages, when read together, set out an orderly dispositive plan
Remember, testator and witnesses must…
Sign the will in each other’s presence
What is a codicil?
A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will
Does a codicil need to be a separate document?
No, it may appear on the same piece of paper as the will it amends
what is the doctrine of dependent relative revocation?
Under DRR a court may disregard a revocation if the revocation was premised on a mistake of law or fact and would not have occurred but for the testator’s mistaken belief that another disposition of his property was valid
The disposition that results from disregarding the revocation must come closer to effectuating what the testator tried, but failed to do than would an intestate distribution
How can paternity be established ?
The father’s marriage to the mother after the child’s birth, adjudication in a paternity suit, or proof in the probate proceedings (usually by clear and convincing evidence)
Is extrinsic evidence admissible in court to determine the Testator’s intent regarding distribution of the will?
No
When is it presumed that Testator understood and approved the terms of the will when he signed it?
Absent any fraud, duress, or suspicious circumstances, it is presumed that testator understood and approved the terms of the will when he signed it.
Does a restrictive covenant that limits development on the land render title unmarketable if the buyer waives title defects?
No, a restrictive covenant that limits development on the land does not render title unmarketable if the buyer waives title defects in the land sale contract. Every land sale contract contains an implied covenant that the seller will provide marketable title at closing. Marketable title is title reasonably free from doubt, which a reasonably prudent buyer would accept. While it need not be perfect title, it must not present the buyer with an unreasonable risk of litigation. Generally, this means an unencumbered fee simple with good record title. Restrictive covenants, regardless of whether the covenant benefits the owner in his use of the land, render title unmarketable unless the buyer waives them. The fact that a land sale contract calls for a quitclaim deed, which does not contain any covenants for title, does not affect the contract’s implied covenant to provide marketable title
What are the damages for breach of a real estate contract?
The usual measure of damages for breach of a real estate contract is the difference between the contract price and the market value of the land on the date of breach
Incidental damages, such as the buyer’s title examination and moving or storage costs, also can be recovered.
What are the damages for breach of a real estate contract?
The usual measure of damages for breach of a real estate contract is the difference between the contract price and the market value of the land on the date of breach
Incidental damages, such as the buyer’s title examination and or storage costs, also can be recovered.
If a seller of land breaches the implied covenant of marketable title, can the closing date be extended to allow the seller time to cure?
Yes. When a seller of land breaches the implied covenant of marketable title, the closing date may be extended to allow the seller time to cure
When the government takes property under eminent domain what must they demonstrate?
They must demonstrate that the taking is for public use.
If a defendant pleas guilty, what must the court do?
The court must establish that the plea is voluntary and intelligent by addressing the defendant in open court on the record.
The judge must make sure that the defendant knows and understands: (1) the nature of the charges against him (2) The maximum possible penalty and mandatory minimum (3) That he has the right to plead not guilty and if he does plead guilty, that he waives the right to trial.
If the defendant is not fully advised of each or does not knowingly/voluntary waive each, the plea will be subject to a motion to set it aside.
When is voluntary intoxication a valid defense?
Voluntary intoxication is only a defense to specific intent crimes such as First degree murder, inchoate crimes, assault, and theft crimes.
What is the trustee’s duty to act personally?
A trustee has a duty to perform her trust duties personally. Traditionally this means the trustee could not delegate investment decisions.
Under most statutes, however, a trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate under the circumstances.
What must a trustee do if they select an agent to manage a trust?
The trustee must exercise reasonable care, skill, and caution in selecting the agent, establishing the scope of the delegation, and periodically reviewing the agent’s actions to monitor the agent’s performance and compliance with the terms of the delegation.
What happens if a trustee improperly delegates her duties?
The trustee becomes a guarantor of the fund
Can a trustee delegate discretionary functions such as making discretionary distributions?
No, this is usually not permissible.
What does a trustee’s duty to protect the trust corpus and make it productive include?
It includes the duty to invest
How must a trustee or their agent invest and manage the trust assets?
As a prudent investor would, taking into account purposes terms, distribution requirements, and other circumstances of the trust.
To satisfy this standard, the trustee must exercise reasonable skill, care, and caution-if they do they wont be liable for decisions made by the agent
How must a trustee deal with investments?
A trustee must diversify investments of the trust unless the trustee reasonably determines that because of special circumstances the purposes of the trust are better served without diversification
How is a limited partnership formed?
A limited partnership must have at least one general partner and one limited partner.
A certificate of limited partnership must be filed with the secretary of state and signed by all general partners.
What is required for a general partnership?
A general partnership is formed as soon as two or more people associate to carry on as co-owners as a business for profit
(make sure you analyze what the business is- example-Andy Ben and Carol hired Marketing to develop a campaign to resell the land they owned together, and this qualifies as co-owning a business for profit)
Are general partners personally liable for partnership obligations?
General partners are jointly and severally liable for partnership obligations
If a partner in a general partnership has not been personally served, will they be bound to a judgment?
No, a judgment will not personally bind a partner who has not been served.
What is the difference between a limited partnership and an LLP?
In a limited partnership, the general partner has unlimited liability for company losses and debts, while a limited partner has limited liability protection against company debts and losses.
In an LLP, all partners have limited liability protection against company obligations and debts.
What are General Intent crimes?
General intent crimes can be stated simply as an intention to make the body move so as to create the act which the crime requires. Basically, did you do the crime? Did your body voluntarily do the action? Snap; you qualify!
Battery – Intentional or reckless unlawful application of force to the person of the victim.
Rape – Unlawful sexual intercourse with a woman without her consent.
False Imprisonment – Intentional unlawful confinement of one person by another.
Kidnapping – False imprisonment plus asportation.
Murder (2nd degree) Battery Rape Imprisonment (false) Kidnapping
What is the difference between first and second degree murder? What about common law murder?
The intentional killing of a person with a pre-planned scenario and deliberation is categorized in first-degree murder.
The intentional killing of a person at spot due to sudden uneven situation or fight. No planning involved in it. This kind of murder is categorized under the second degree of murder.
Common law murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it and committed with one of the states of minds:
(1) Intent to kill
(2) Intent to inflict great bodily harm
(3) Reckless indifference to an unjustifiably high risk to human life (malignant heart)
(4) Intent to commit a felony therein
What are specific intent crimes?
Specific intent crimes require a subjective desire, specific objective or knowledge to accomplish a prohibited act. This is different than general intent because it adds the element of requiring there be an intention to cause the specific consequence of the act. If you break and enter into the home of another to keep warm from the cold then you are not intending to commit a felony therein; unless they make entering homes to stay warm from the cold a felony
BRAM ACTS
Burglary
Robbery
Assault
Murder, 1st degree premed.
Attempt
Conspiracy
Theft crimes (embezzlement, larceny, false pretenses, forgery)
Solicitation
What are inchoate crimes?
Attempt to commit a crime
conspiracy to commit a crime
solicitation to commit a crime
What are malice crimes?
Malice crimes require a reckless disregard of a high risk of harm. At common law, malice crimes include arson and murder.
Common law murder
Arson
What does inventory include?
Supplies used in manufacturing
What is an after acquired property clause?
An after acquired property clause is a clause that gives a security interest in property acquired by debtor using funds loaned pursuant to the security agreement
e.g.-L loans $5k to D, secured by attachment of D’s gold watch as collateral; security agreement includes an after acquired property clause; L will have a security interest in the gold watch as well as property D acquires using the $5k
When does a security agreement that includes an after-acquired property clause attach?
When a debtor obtains an interest in the property
What happens when a seller delivers goods to a buyer and attempts to reserve title in the delivered goods until they are paid for?
The seller’s interest will only be treated as a security interest
How can a security interest in inventory be perfected?
A security interest in inventory can be perfected by filing a financing statement or by the secured party’s possession of the collateral
May be worth mentioning on the exam–
If there is a PMSI in inventory, say something like “although they have a PMSI, only PMSIs in consumer goods are auto perfected”
REMEMBER TO WRITE WHEN THERE IS TWO COMPETING SECURITY INTERESTS
“Between two parties with competing interests in the same collateral, a perfected security interest prevails over an unperfected security interest”
What is a settlement agreement?
A settlement agreement is an agreement entered into during the marriage, before the issuance of the divorce in which the parties may resolve economic issues.
What are settlement agreements governed by?
General contract principles
What is required in settlement agreements?
Most states require full and fair disclosure by both parties
Most states require a settlement agreement to be fair and entered into voluntarily-without undue influence
What happens if a spouse’s fraud duress, or coercive behavior results in an unfair agreement?
The settlement agreement may be set aside
Representation by independent counsel lessens the chances of the agreement being overturned
Will a spouse’s marital fault affect the property settlement or alimony award?
Marital fault is generally not a factor in the division of property although some courts will consider it to the extent it led to a dissipation of assets.
(spouse spent marital funds in connection with adulterous relationship)
Some states will consider marital fault in deciding whether to award alimony but in others its not a factor
Is a professional license distributable property in divorce?
Most jurisdictions ruled that neither a spouse’s earning capacity nor the professional license or degree on which it is based is distributable
Is a license or degree classified as marital property even when its attainment was made possible through support of the other spouse?
No.
Is there any way a spouse can collect from a professional license?
Some jurisdictions have compensated supporting spouses for their contribution in other ways such as by: employing the theory of unjust enrichment, making a supporting spouse’s contribution a factor on which alimony may be based, and awarding reimbursement of alimony
When dealing with an alimony/spousal support question state:
The purpose of spousal support is to ensure an adequate income stream for persons whose economic dependency has resulted, at least in part, from the marital relationship.
The court has wide discretion in awarding as much spousal support as is necessary for the maintenance of the party requesting it
What factors does a court consider for awarding spousal support?
(1) standard of living during the marriage
(2) the duration of the marriage
(3) Age and physical/emotional conditions of parties
(4) Financial resources of the parties
(5) The contributions of each party to the marriage
(6) The time needed to obtain education or training to enable either party to find employment
(7) the ability of a spouse from whom support is sought to meet his needs while paying support
When is permanent alimony granted?
Only in the case of a long term marriage, alimony is paid regularly to provide for a spouse who has neither the resources nor the ability to be self-sustaining
What is rehabilitative alimony?
Rehabilitative alimony consists of periodic payments for a limited time to enable a spouse to gain the skills or education necessary to become self-supporting
What is reimbursement alimony?
Reimbursement alimony awards a fixed sum to a spouse who supported the other spouse while the latter obtained a degree or license
What is a proper purpose in terms of a shareholder’s inspection of books and records rights?
A “proper purpose” is a purpose related to the shareholder’s status as a shareholder
What must a shareholder do to exercise their right to inspect books and records?
The shareholder must give 5 days written notice
The notice must state the reason they want to inspect records
Who can the shareholder bring with them to inspect the records?
An accountant, attorney, or other agent with him to facilitate the inspection
Is a suit to compel a stock dividend a direct or derivative suit?
Direct
What is the difference between a direct and a derivative suit?
A derivative action seeks to vindicate wrongs done to the corporation. A direct action seeks to enforce duties that a corporation owes to the shareholder.
Does a shareholder have a right to receive a dividend?
A shareholder has no right to receive a dividend until it is declared by the board of directors. The board has the sound discretion on whether to declare a dividend.
What is the Dead Man’s Act
A typical Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased. Such statutes are designed to protect those who claim directly under the decedent from perjured claims.
What is the difference between the implied warranty for particular purpose and implied warranty of merchantability?
Warranty of merchantability states that their fit for their “ordinary purpose”
Warranty of particular purpose buyer has a particular purpose that the seller knows of
What is malice?
Malice is broader than the intent required for specific intent crimes and has nothing to do with ill will or evil motive. Malice asks “did the defendant undertake an obvious risk which a harmful result is expected?” only need to ask for common law murder and arson
What is the test to determine if someone is in custody for Miranda purposes?
Two step inquiry:
(1) Is the person’s freedom of action limited in a significant way? (would a reasonable person in the circumstances feel free to leave?) If so then..
(2) Did the environment present coercive pressures similar to those found in a police station?
What is an exception to the Miranda doctrine?
Public safety exception
if the police interrogation was reasonably prompted by concerns for public safety, responses to the questions may be used in court even though the suspect was in custody, was interrogated, and Miranda Warnings were not given.
What is too long for “immediately after” for the present sense impression exception to hearsay?
according to a barbri answer “20 minutes” later is not immediately after
REMEMBER for the excited utterance exception….
Always analyze the excited utterance exception if the facts indicate a “startling event”. Shooting, explosion, etc.
What hearsay exceptions require unavailability?
Former testimony Statement against interest Dying Declaration Statements of Personal or Family history Statements offered against the party procuring declarant's unavailability
When dealing with commandeering issues, as part of your rule of law state–
The federal government is a government of limited power. Under the 10th amendment, those powers not granted to the federal government are reserved for the states.
When talking about conditional grants from the federal government as part of your rule of law state–
Congress has the power to spend for the general welfare. This spending may be for any public purpose.
Congress may put conditions on the grant of money so long as (1) conditions are closely stated (2) relate to the purpose of the program, and (3) are not unduly coercive.
Don’t forget for UCC contracts
sale of goods $500 or more requires a writing
when this is an issue state before it, “normally oral contracts are sufficient”
contract for the sale of an antique doll for $12,000 was made via oral contract. Buyer sends a letter later describing the doll adequately, signed, and that there was one doll. The buyer wrote the letter to say they did not want the doll anymore
This writing was sufficient to satisfy statute of frauds
What is repudiation of a contract?
Repudiation is a party’s refusal to perform their part of the contract.
When does anticipatory repudiation occur?
Anticipatory repudiation occurs if before the time set for performance of his promise a party indicates that he will not perform when the time comes.
In the case of an anticipatory repudiation, what alternatives does the nonrepudiating party have?
(1) treat the AP as a total repudiation and sue immediately (2) suspend his own performance and wait to sue until performance date (3) treat repudiation as an offer to rescind and treat the contract as discharged or (4) ignore the repudiation and urge the promisor to perform.
Can a repudiating party withdraw their repudiation?
Yes, unless the other party has canceled, materially changed her position in reliance on the repudiation, or otherwise indicated that she considers the repudiation final.
Withdrawal of the repudiation may be in any manner that clearly indicates intention to perform, but it must include an assurances justifiably demanded.
When dealing with damages under the UCC, make sure you state…..
Under the UCC, the purpose of remedies is to put the non breaching party in the position she would have been in had the promise been performed.
What do incidental damages include?
Expenses reasonably incurred by a seller in storing, shipping, and reselling the goods as a result of the buyer’s breach.
What must a seller do if he chooses to resell after the other party breached?
He must resell in good faith, and give the breaching party notice of intention to resale.
Guy burns book in federal building and is arrested under statute that prevents lighting fires in public buildings, is his first amendment right violated?
NO-not because its “conduct” but because the state law is narrowly drawn to further a substantial govermental interest.
Questions like these asks, is the state trying to ban because of speech? Here its ban because fires burn shit and that’s bad. (Which is not a conduct restriction)
What is required for adverse possession?
To establish title by adverse possession, the possessor must show:
(1) Actual and exclusive possession that is
(2) Open and notorious
(3) Adverse (hostile)
(4) Continuous throughout the statutory period.
If an owner does not within the statutory period, take legal action to eject an adverse possessor, title to the property vests in the possessor.
An adverse possessor gains title only to the tract he actually occupies
What is required for Actual possession?
Possessor must physically occupy the property
When is possession open and notorious?
Possession is open and notorious when it is the kind of use the usual owner would make of the land. It must put the true owner on notice that a trespass is occurring.
When is possession hostile?
Possessor does not have the owner’s true permission
When can separate periods of adverse possession be tacked together?
Separate periods of adverse possession may be tacked together to make up the full statutory period with the result that the final adverse possessor gets title provided there is privity between the successive adverse holders.
When is privity satisfied for tacking (adverse possession)?
Privity is satisfied if the subsequent possessor takes by descent, by devise, or by deed purporting to convey title.
A general warranty deed normally contains 6 covenants of title what are they?
3 present covenants
- Right to convey
- Covenant of seisin
- No encumbrances
pReSeNt
3 future covenants
- Further assurances
- Quiet Enjoyment
- Covenant of Warranty
FEW
What is the covenant of seisin?
a present covenant that warrants the grantor has the estate or interest that she purports to convey
What is the covenant of right to convey?
Present covenant that the grantor has power and authority to make the grant (similar to seisin)
What is the covenant of no encumbrances?
Present covenant that there’s no encumbrances (easements, liens, etc.)
What is the covenant of further assurances?
A covenant of further assurances is a promise that the grantor will do whatever is necessary to remove a defect associated with title, such as an encumbrance, if it arises, and if the problem is not fixed, damages will be awarded.
What is the covenant of quiet enjoyment?
If the covenant of quiet enjoyment is included in the deed, it is in essence a warranty that the title of the land will be good against any hostile claims, such as liens, mortgages, or easements,
What is the covenant of warranty?
Grantor agrees to defend against reasonable claims of title by a third party and to compensate the grantee for any loss sustained by the claim of superior title
What are the two requirements to satisfy personal jurisdiction?
For a state court to exercise personal jurisdiction over a defendant, there must be:
(1) A state statute granting the court jurisdiction (because a federal court must analyze personal jurisdiction issues as if it were a state court in the jurisdiction), (LONG ARM STATUTE) and
(2) the grant must be constitutional.
What makes a grant of personal jurisdiction constitutional?
Personal jurisdiction is constitutional if the defendant has engaged in such minimum contacts with the state that it would not offend traditional notions of fair play and substantial justice. The court considers whether the defendant purposefully availed himself of that state’s jurisdiction.
How do you determine whether to transfer venue?
First, you must determine if venue was properly laid to begin with
Then, if properly laid, whether a transfer for convenience would be warranted.
When is venue proper?
Venue is proper in a judicial district in which:
(1) any defendant resides, if all defendants are residents of the state in which the district court is located;
(2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated or
(3) If neither (1) or (2) are met, then venue is proper where any defendant is subject to the court’s PJ with respect to such actions,
if the original venue was proper, when can the case be transferred?
For the convenience of the parties or witnesses, to another venue in which the action “might have been brought” or to another which the parties have consented
What is required for a deed to be valid?
A deed must be:
(1) in writing
(2) sufficiently describe the land
(3) Identify the grantor and grantee
(4) evidence an intention to convey the land
(5) signed by the grantor
Under a notice statute, who wins between a subsequent BFP who doesn’t record and a prior grantee?
The subsequent BFP prevails.
Remember if dealing with a recording statute issue …
mention the three types of notice: Actual, inquiry record,
What creates a joint tenancy?
4 unities Time Title (instrument) Interest Possession
What do joint tenants have?
The right of survivorship
What is required in the conveyance to create a joint tenancy?
An intention to create rights of survivorship must be expressed or else it’ll be a tenancy in common
What happens if a JT does an inter vivos conveyance?
Her entire undivided interest destroys the joint tenancy, so that the transferee takes the interest as a tenant in common
What happens if a JT conveys a lesser interest like a mortgage?
May not effect a severance if it is a lien theory state. (unless mortgage is foreclosed upon or they die before paid off)
If it is a title theory state the joint tenancy is severed because title has transferred
What is the shelter Rule?
Under the shelter rule, a person who takes from a bona fide purchaser will prevail against any interest that the transferor-BFP would have prevailed against. This is true even if he has knowledge of the prior unrecorded interest.
What is the covenant against encumbrances?
The covenant against encumbrances assures that there are neither visible encumbrances (easement, servitude, etc.) nor invisible encumbrances (mortgages etc.) against the title or interest conveyed. Because this is a present covenant, this is breached, if at all, at the time of conveyance.
Do present covenants run with the land?
Majority rule- no
Minority-Remote grantee can sue unless they had knowledge of the encumbrance
When addressing issues that deal with fee simple subject to condition subsequent and fee simple determinable, make sure you…
Mention the future interests (right of reentry and possibility of reverter)
What type of language creates each (conditional and durational)
When terms are ambiguous regarding FSSCS and FSD, what happens?
Courts want to avoid forfeiture of estates, so they favor FSSCS
How is an easement terminated by abandonment?
An easement may be terminated when the easement owner demonstrates, by physical action, the intent to permanently abandon the easement
Mere nonuse is insufficient.
Remember when analyzing recording acts, first analyze the common law rule which states
At common law when a grantor conveyed the same land to multiple grantees, priority went to the earlier grantee
(first in time is first in right)
Then state modern statutes change the common law rule with a recording statute
Remember to define what a BFP is when analyzing a recording statute
A BFP is a purchaser for value and without actual knowledge of the prior grants
Can a subsequent purchaser be charged with record notice for wild deeds?
A subsequent purchaser will not be charged with record notice of deeds outside their chain of title
What is inquiry notice?
A grantee is charged with knowledge of any fact that would have been revealed through reasonable inquiry
bonus: In a majority of states, a grantee who takes a quitclaim deed cannot be charged with inquiry notice
What will be sufficient to satisfy inquiry notice?
A grantee is on inquiry notice of what an inspection of the premises would have revealed; the physical appearance of the land can give notice of an adverse interest
What happens when an dominant estate purchases the servient estate?
The easement is extinguished through merger if it becomes owned by the same person
When is an easement implied from existing use?
(1) before a tract is divided, an apparent and continuous use exists on the servient part
(2) the use is reasonably necessary for the enjoyment of the dominant parcel and
(3) a court determines that the parties intended the use to continue
Who has priority between obligatory advances made pursuant to a mortgage, and a second mortgage placed on the land and recorded before the final advance was made?
If a mortgage obligates the lender to make further advances of funds, those future advances will have the same priority as the original mortgage.
What if the further advance is optional?
The optional advance does not have priority over the second mortgage
When does a landlord constructively evict a tenant?
A tenant can claim constructive eviction if:
(1) the landlord or someone acting for the landlord caused the injury
(2) the breach substantially and materially deprived the tenant of her use and enjoyment of the property
(3) the tenant gave the landlord notice and a reasonable time to repair
(4) the tenant vacated the property within a reasonable time
what can a landlord do if the tenant unjustifiably abandons the property?
She may do nothing or she may repossess
If a landlord repossess and/or relets the tenant’s liability will depend on whether the landlord has accepted a surrender of the premises. What happens if a landlord accepts the surrender?
A surrender must be in writing
If surrender is not found, tenant remains liable for the difference between the promised rent and the fair rental value of the property
If surrender is found, the tenant is free from any rent liability accruing after abandonment
What implied warranty applies to contracts for a builder’s sale of any new residential building under construction ?
the implied warranty of fitness or quality
What is the implied warranty of fitness or quality?
That the new house is designed and constructed in a reasonably workmanlike manner and suitable for human habitation
Not every jurisdiction will apply the warranty to remote grantees
How does a grantee assume a mortgage?
Grantee signs an assumption agreement promising to pay the mortgage loan. He becomes primarily liable and the original mortgagor becomes a surety. MAJORITY STATES REQUIRE EXPRESSED ASSUMPTION
Some jurisdictions allow for implied assumption of a mortgage, this occurs when
a grantee pays the seller of real property an amount equal to the value of the real property minus the outstanding balance on the mortgage might be deemed to have assumed the mortgage by implication
Remember to mention with quitclaim deeds
Unlike deeds that contain covenants of title, a quitclaim deed is a release of whatever interest the grantor has in the property, if any
What rule of law should you state for summary judgment?
Summary judgment must be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
What is required for claim preclusion to apply?
(1) there must have been a valid, final judgment on the merits;
(2) both parties must be the same (or be in privity with a party in the prior suit), and
(3) the new action must involve the same causes of action (same T/O)
What is required for issue preclusion to apply?
(1) Issues in both actions must be the same
(2) there must have been a final judgment as to that issue
(3) the party against whom collateral estoppel is asserted must have had a fair opportunity to be heard on the matter
(4) the posture of the case must be such that it would not be unfair or inequitable to apply collateral estoppel (issue preclusion)
In order to make a renewed motion for judgment as a matter of law, a JMOL must have been made at some point during the trial in order to move for a renewed JMOL
A party is limited to the grounds raised in the initial JMOL OR a party is unable to “renew” an objection that was not raised in the initial motion
What is the standard to grant a JMOL or renewed JMOL?
The court must find that a reasonable jury would not have a legally sufficient basis to find for the party on the issue-must view the evidence in the light most favorable to the nonmoving party
When can a motion for new trial be granted?
a new trial can be granted if some serious error occurred during trial (an error in the admission of evidence, error in instructing the jury, the verdict is excessive etc.)
Or if the jury verdict is a clear miscarriage of justice
What law applies if a transfer of venue is made solely on convenience grounds?
The law of the transferee court will apply.
What law applies if transfer of venue is based on a forum selection clause?
The law of the transferee court will apply.
When can a party be permissively joined as plaintiffs or defendants?
Whenever:
(1) some claim is made by each plaintiff and against each defendant relating to or arising out of the same T/O AND
(2) There is a question of law or fact common to all parties
What does supplemental jurisdiction require?
Supp. Jurisdiction requires the claim arise from the same CNOF as the claim that invoked original federal SMJ
The addition of a PLAINTIFF by means of supp. jurisdiction cannot destroy complete diversity
What claims made by plaintiffs cannot be heard under the court’s supp jurisdiction?
Claims by compulsory joined plaintiffs or by plaintiffs seeking to intervene may not be heard under the court’s supp jurisdiction.
Ask if supp jurisdiction is being used to support a claim by a permissively joined party or against a permissively joined party
If it is being used to support a claim by a permissively joined party, the use of supp jurisdiction is not restricted
What is numerosity for class actions?
class must be so numerous that joinder of all members is impracticable
What is commonality for class actions?
Common questions of law or fact
What is typicality for class actions?
Named party’s interest must be typical of the class
What is adequacy for class actions?
The attorney for the named party must be able to fairly and adequately represent the absent class members
What is consideration?
A bargained for exchange of legal value
When can a modification of a service contract occur without additional consideration?
If the modification is “fair and equitable” in view of the circumstances not anticipated when the contract was made
Usually means a party encountered difficulties in performing bordering on impracticability
Does a UCC contract modification require new consideration?
No, under the UCC contract modifications sought in good faith are binding without consideration
Does a UCC contract modification require new consideration?
No, under the UCC contract modifications sought in good faith are binding without consideration
good faith=legitimate commercial reason
What is a merchant’s firm offer?
If a (1) merchant (2) offers to sell goods in a signed writing, and (3) the writing gives assurances that it will be held open, THEN
(4) the offer is not revocable for lack of consideration during the time stated
Remember to state what a merchant is for UCC issues when necessary
A merchant is one who regularly deals in goods of the kind sold or who otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved
In service contracts, when is substantial performance sufficient?
If the breach is minor, then performance is substantial
What are expectation damages?
For breach of contract, the party is entitled to expectation damages, which intend to put the injured party in the same position as if the contract had been performed.
What are consequential damages?
Consequential damages consist of losses beyond those covered by the standard measure that a reasonable person would have foreseen would occur as a result of the breach
What is the full rule of law you can state for whether there is a valid contract?
Common law of contracts applies for service contracts
To form an enforceable contract there must be mutual assent (offer and acceptance) , consideration and the absence of any defenses to formation
Then decide whether offer, acceptance, consideration, or defenses is an issue and go from there (see ROL on other cards)
What is consideration?
Consideration is a bargained for exhange that has legal value.
No bargain when a party gives a gift.
Legal value is usually considered to be either a benefit to the promisor or detriment to the promisee.
The promise must induce the detriment and the detriment must induce the promise.
What is promissory estoppel?
If necessary to avoid injustice, a court will enforce a promise without consideration if (1) the promisor should have expected the promissee to change position in reliance on the promise (2) the promisee did change his position and (3) the change in position was to the promisee’s detriment
What is an offer?
An expression of a promise, undertaking, or commitment to enter into a contract
An offer contains terms that are definite and certain and is communicated to the offeree.
What is an acceptance?
An acceptance is a manifestation of assent to the terms of an offer in the manner prescribed or authorized by the offer
For purposes of defamation a newspaper that publishes a defamatory statement made by a columnist is?
liable a primary publisher
What is a republisher in terms of defamation?
a republisher is one who repeats a defamatory statement. Usually held liable on the same general basis as a primary publisher
What are the requirements for common law defamation?
(i) Defamatory language on the part of the defendant;
(ii) Defamatory language “of and concerning” the plaintiff (i.e., identifying the plaintiff to a reasonable reader, listener, or viewer);
(iii) Publication of the defamatory language by the defendant to a third person; and
(iv) Damage to the reputation of the plaintiff.
As to (iii), the publication may be made either intentionally or negligently. As to (iv), damages is an element of the prima facie case even though in some cases damages may be presumed. Falsity of the defamatory language is not an element of common law defamation. The element of falsity is constitutionally required when the defamation refers to a public figure or involves a matter of public concern
Defamation on matters of purely private concern do not require..
Malice
What is colloquium?
Colloquium involves pleading additional facts to show that a defamatory statement refers to a plaintiff. A statement may be actionable even though it has no clear reference to the plaintiff on the face of the statement. In such a case, the plaintiff must introduce additional extrinsic facts that would lead a reasonable reader, listener, or viewer to perceive the defamatory statement as referring to the plaintiff.
For a prima facie case of interference with business relations is an existing contract necessary?
No
Whose statements are privileged in judicial proceedings?
Judges, attorneys, jurors, witnesses, and parties
What is slander?
Slander is spoken defamation
What is libel?
Libel is written defamation (along with TV broadcasts and radio)
What are the 4 slander per se categories?
- Disparages the plaintiff in the conduct of her business or occupation;
- Asserts that the plaintiff is suffering from a loathsome and communicable disease;
- Alleges that the plaintiff has committed a serious crime or crime of moral turpitude; or
- Imputes unchastity to a female plaintiff.
Does plaintiff have to prove special damages for libel?
No
Does plaintiff have to prove special damages for slander?
Yes, unless it is slander per se.
What are the defenses to defamation?
Consent
Truth
Privilege (qualified or Absolute)
What is appropriation?
Appropriation is an invasion of privacy tort where the defendant uses Plaintiff’s name or likeness for commercial purposes
Newsworthiness exception-no liability
Consent and privilege are defenses
What is false light?
Widespread publication of a falsehood or material misrepresentation about Plaintiff that would be highly offensive to a reasonable person
Includes mischaracterization of P’s views or conduct
If it is a matter of public concern defendant must have acted recklessly or with malice
Consent and privilege are defenses
What is intrusion upon seclusion?
Intrusion upon plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person
- Plaintiff must have a reasonable expectation of privacy
2 Intrusion must be highly offensive (peeping eavesdropping)
No newsworthy exception
consent and privilege are defenses
What is the tort of disclosure?
Public disclosure of plaintiff’s private information
(1) Disclosure must be highly offensive to a reasonable person
(2) publicized-made available to public audience
public activities are not objectionable
No newsworthiness exception
consent and privilege are defenses
What is the difference between malicious prosecution and abuse of process?
Malicious prosecution defendant initiates a frivolous charge with improper purpose (e.g. filing false police report)
Abuse of process is when defendant uses the legal system as an ulterior purpose to threaten or act against the plaintiff
what are the elements for intentional interference with business relations?
- P has a valid contractual relationship or business expectancy
- D has knowledge of the relationship or expectancy
- D intentionally interferes with that relationship
- Ds interference causes a breach or termination in Ps contract or expectancy
- Damages
what is a private nuisance?
Private nuisance is a substantial, unreasonable interference with an individual’s use or enjoyment of her property
it must be annoying or inconvenient to the average person in the community-P cannot be hypersensitive
What is a public nuisance?
Public nuisance is an unreasonable interference with health safety or property rights of the community at large
A private party can only recover if she received special damages not suffered by the public at large
Govt usually brings public nuisance actions
Defense to nuisance actions
Plaintiff cannot come to the nuisance for the sole purpose of bringing suit
Contributory negligence is available if P acted negligently in creating nuisance
How do you determine the reasonableness of a search or seizure?
(1) Is there govt conduct constituting a search or seizure?
- meaning is it the police
(2) Does D have standing?
- does he have a reasonable expectation of privacy
(3) Is there a valid search warrant?
(4) if no valid search warrant, was there a valid exception to the search warrant requirement?
What are the exceptions to the search warrant requirement?
(1) Search incident to arrest
(2) Plain view search
(3) Automobile search
(4) Valid consent to search
(5) Exigent circumstances
(6) Stop and frisk
Plaintiff must have a reasonable expectation of privacy to have standing
Areas outside the curtilage are unprotected by the 4th amendment
Automatic standing-Owns, has a right to possess, or lives in the premises to be searched OR is an overnight guest of the premises to be searched
What are the requirements for a valid search warrant?
(1) Based on probable cause-usually an affidavit demonstrating probable cause that the search or seizure will produce evidence
(2) Precise on its face- warrant must describe with reasonable precision, the place to be searched and/or items to be seized
(3) Issued by a neutral and detached magistrate
What is the good faith exception to valid search warrants?
Exclusionary rules does not apply if police act in good faith on an invalid search warrant
However, the affidavit for the warrant cannot completely lack probable cause
What is the proper manner to execute a search warrant?
Timing-The search warrant must be executed without unreasonable delay after it is issued
Knock and announce (not required if possibly dangerous or inhibit investigation)
Scope of search limited to what is reasonably necessary to discover items described in warrant
-Police can detain people found on the premises however they cannot search them unless they are specifically named in the warrant or a valid warrantless search exception applies
Can police search the vehicle of an arrested person?
Police may search the vehicle’s interior, including the glove box, if at the time of the search
(1) Arrestee is unsecured or (2) They reasonably believe evidence of the crime for which the arrest was made may be found in the vehicle
Police cannot search trunk without probable cause or consent
What is the automobile exception?
Police can search anywhere in the car if they have probable cause that arose before the search began can even open packages and search the passengers
What is the exclusionary rule?
The exclusionary rule prohibits the introduction of evidence obtained in violation of defendant’s constitutional rights in a criminal trial
What is the fruit of the poisonous tree doctrine?
Evidence derived or obtained from illegal government conduct is excludable against the defendant
-arises when illegal police action leads to evidence
Exception illegally obtained evidence admissible if govt can “break the chain” between the illegal govt conduct and the seized evidence
What does the exclusionary rule not apply to?
Grand jury proceedings, civil proceedings, parole hearings, or administrative cases
violations of the knock and announce rule
Evidence seized as a result of miranda violations
What is the difference between 5th and 6th amendment right to counsel?
5th amendment right to counsel applies after being in custody and read miranda. 6th amendment requires a criminal proceeding to begin (e.g. indictment filed).
5th amendment applies when in police custody. 6th amendment applies to all critical stages of a criminal proceeding.
Once 5th amendment right is invoked the police cannot question suspect on ANY MATTER. While 6th amendment is offense specific.
What is solicitation?
Inciting, urging or otherwise asking another to commit a crime with the intent that they commit the crime-no need for the person they ask to agree
What is conspiracy?
Agreement between two or more people to commit a crime or unlawful objective
What is attempt?
An act done with the specific intent to commit a crime that constitutes an overt or substantial step towards committing the crime-an incomplete act that would have been a crime if completed
Overt act means beyond mere preparation
What is the M’naghten defense to insanity?
Defendant does not know right from wrong due to a mental disease or defect at the time of the offense
What is the irresistible impulse defense to insanity?
Defendant acted due to an irresistible impulse due to a mental illness
What is the MPC defense to insanity?
Mix of M’naghten and irresistible impulse. As a result of mental disease D lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law
What is the Durham defense to insanity?
But for defendant’s mental illness, he would not have acted
What is the infancy defense?
Under 7 years old-no criminal liability
7-14 years old rebuttable presumption against criminal liability
What is the diminished capacity defense ?
Available if D can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime
Due process and defendant’s mental condition-
Due process clause forbids defendant from being tried, convicted, or sentenced if, as a result of his mental disease or defect, defendant is unable to either understand the nature of the proceedings or assist his lawyer in prep of his defense
Capital punishment defense
Defendant cannot be executed if he is incapable of understanding the nature and purpose of the punishment at the time of execution
What crimes is involuntary intoxication a defense to?
All crimes
What is Embezzlement
The fraudulent conversion of another’s personal property by one in lawful possession
This is different than larceny because a person embezzles when they had a right in the property
If D takes property with the intent to restore the exact property -no embezzlement
No embezzlement if Defendant believed they had a right
What is the difference between false pretenses and Larceny by trick?
False pretenses requires obtaining title to another’s property using false statements of past or existing fact with intent to defraud
Larceny by trick obtains possession of another’s personal property using false statements of past or existing fact
False pretense-obtains title
Larceny by trick-obtains possession
(remember same amount of syllables)
Receipt of stolen property
is a crime if known to be illegally obtained and they had intent to permanently deprive
What is forgery?
Creating or altering a written document with the purported legal significance to be false with the intent to defraud
What is IIED?
Extreme or outrageous conduct by D causing Ps severe emotional distress
(physical symptoms not necessary)
What is bystander IIED?
A bystander closely related to a person physically injured or killed by Defendant’s conduct may recover for emotional distress
- D conduct seriously injured or killed a 3rd person
- P is closely related to the injured person
- P was present when the injury occurred
- D knew elements 2 and 3
- P suffers severe emotional distress
What is NIED?
P may recover for emotional distress resulting from D’s negligence
- D’s negligence results in a close risk of bodily harm to P
- D’s negligence results in P’s severe emotional distress
- P exhibits some physical manifestation attributable to her emotional distress
A bystander can recover if:
- P and the injured person are closely related
- P was present at the scene of the injury; and
- P personally observed or perceived the event
What are the three types of product defects for products liability?
Manufacturing defect
Design defect
Inadequate warning
