I CAME TO WIN Flashcards
Final review
Cg / Commerce Clause
Commerce Clause (general defintion)
Con Law
Cg can regulate commerce
- channels of interstate commerce
- instrumentalities of interstate commerce
- any behavior that has a substantial effect on interstate commerce (can be aggregated)
Cg only needs a rational basis to conclude that the total incidence of the activity substantially affects interstate commerce
most robust power
if behavior is economic in nature, presumed to have substantial effect on interstate commerce
federalism / Dormant Commerce Clause
Dormant Commerce Clause
Con Law
- limits power of states to legislate in ways that impact interstate commerce
- arises when (1) states are acting in ways that disadvantage each other + (2) Cg is silent
If Cg has not enacted legislation on a particular area of interstate commerce, then states can regulate as long as they do not
1. discriminate against out of state commerce
2. unduly burden interstate commerce OR
3. purposely regulate wholly out of state activity
DUP
discriminates against interstate commerce –> strict scrutiny
nondiscriminatory on its face –> burden-benefit analysis
federalism / Dormant Commerce Clause
what does it mean to “discriminate against out of state commerce”?
Con Law
includes state or local laws that protect local economic interests at expense of out of state competitors
exceptions (discriminatory state law will survive):
- necessary to serve an important state interest
- state is acting as a market participant (buying or selling stuff)
- Cg authorizes a state regulation of commerce (no longer dormant)
procedural due process / process due
factors court will weight to decide what process is due (Mathews v. Eldridge)
Con Law
- individual interest at stake
- value of procedure that is protecting the interest AND
- government’s interest in efficiency (cost to provide the process)
establishment of religion clause (1st)
what it the test for challenges to the establishment clause?
Con Law
considers the country’s historical practices and understanding about role of religion in everyday life
establishment clause (1st)
freedom of expression (1st) / content-neutral restrictions
what are the requirements for the govt to restrict protected speech in a public forum?
Con Law
govt may restrict protected speech in a public forum if the restriction IS:
- neutral on its face + as applied
- leaves open alternative channels of communication AND
- narrowly serves a significant state interest
freedom of expression (1st) / content-neutral restrictions
what are the requirements for govt to restrict protected speech in a non-public forum?
Con Law
- viewpoint neutral AND
- reasonably related to a legitimate governmental interest
freedom of expression (1st) / content-neutral restrictions
can the govt regulate expressive conduct? what’s the test?
Con Law
govt CAN regulate expressive conduct as long as
1. regulation in question furthers important interest
2. interest is unrelated to the expression AND
3. burden on expression is no greater than necessary
takings clause (5th)
what is a regulatory taking? what factors does a court consider?
Con Law
govt rule adversely affects a person’s property to such an extent that it rises to the level of a taking
factors:
- gravity of economic impact
- extent to which regulation interferes with owner’s reasonable investment-based expectations
- character of regulation (how much it will benefit society)
what is an exaction (type of Taking)? what is the rule?
Con Law
- local govt conditions issuance of a building or development permit on landowner’s promise to dedicate part of the property for public use
- taking UNLESS govt establishes
1. essential nexus - imposed condition substantially advances a legitimate govt interest AND
2. rough proportionality b/t proposed impact on community and impact on landowner
govt has to make individualized determination that conditions are related in nature and extent to the impact
relevance / character evidence
in a criminal case, can the defendant intro evidence of their character? if so, what can the prosecution do next?
Evidence
defendant can intro evidence of their good character that is pertinent to the crime
defendant is limited to witnesses who will testify about opinion or reputation
this opens the door for the prosecution to rebut the defendants claims by attacking the defendant’s character
relevance / character evidence
can evidence of the defendant’s past crimes or bad acts be introduced?
Evidence
only when the evidence is used for some other purpose (like establishing a pattern of operation), not the propensity argument
MIMIC evidence
Motive
Intent
Absence of Mistake
Modus Operandi / Identity
Common plan or scheme
MIMIC are the relevant, non-character purposes
witnesses / impeachment
what are the basic ways to impeach a witness?
Evidence
- show that the witness is dishonest, has a bad character for truthfulness
- bias
- sensory competence
witnesses / impeachment
how do you show that a witness has a character for truthfulness or untruthfulness?
Evidence
- character witness testimony - may be attacked through reputation or opinion, not prior specific incidents
- specific acts - may cross examine the witness about specific acts of dishonesty if there’s a reasonable basis for asking the question, must be probative of untruthfulness, only permitted to ask, have to take the answer
- criminal convictions
tangible evidence / Best Evidence Rule
what is the Best Evidence Rule? (most basic version)
Evidence
you can’t describe the documents (witness testimony) instead of showing them unless you really need to
limits the ability to present other evidence of the contents of a document, film, recording, etc. when the contents are an issue
“just show us the real doc instead of talking around it”
privileges / spousal
what are confidential marital communications?
Evidence
protects communications made b/t spouses in confidence in reliance on the sanctity of marriage
held by both spouses
survives after marriage
privileges / spousal
what is spousal immunity?
Evidence
gives a spouse the right to refuse to testify in a criminal case against their spouse
only applies to currently married spouses not exes
covers testimony about anything, but only applies when currently married
witness spouse holds the privilege
hearsay / non-hearsay
what are the two big categories that are excluded from the definition of hearsay?
Evidence
- certain prior statements of testifying witnesses
- admissions of a party opponent
hearsay / non-hearsay / certain prior statements of testifying witness
what is the threshold question for these statements?
Evidence
declarant (1) must testify as a witness and (2) be subject to cross-examination for these exclusions to apply to (3) their earlier statements
hearsay / non-hearsay / certain prior statements of testifying witness
what is the rule for prior inconsistent statements? how can they be used?
Evidence
only prior inconsistent statements that were (1) made under oath (2) at a trial, hearing, or deposition
are admissible as substantive evidence
hearsay / non-hearsay / certain prior statements of testifying witness
what is the rule for prior consistent statements? how can they be used?
Evidence
can be used to rehabilitate a witness when accused of recent fabrication or improper motive
can be used as substantive evidence
hearsay / non-hearsay / admissions of a party opponent
what is the general rule?
Evidence
if the statement that is being introduced against a party is the party’s own prior statement, then it is NOT hearsay
applies to anything a party said
must be offered by the opposing party
hearsay / exceptions / declarant unavailable
what is the list of exceptions?
Evidence
FADDS
- former testimony
- dying declarations
- statements against interest
- statements of personal or family history
- forfeiture by misconduct / declarant unavailable due to party’s wrongdoing
hearsay / exceptions / declarant unavailable
what is required for the dying declarations exception?
Evidence
- individual believes they’re dying
- individual believes death is imminent AND
- statement relates to the cause or circumstances of death
admissible in homicide or civil case
declarant doesn’t actually have to die
hearsay / exceptions / declarant unavailable
what is required for the statements against interest exception?
Evidence
(1) at the time it was made, statement was against the (2) declarant’s pecuniary, proprietary, civil, or penal interest (3) such that a reasonable person would not have made the statement (4) UNLESS it were true
statements that would subject the declarant to CRIMINAL liability are NOT admissible UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement
applies to civil + criminal cases
hearsay / exceptions / declarant’s availability immaterial
what is the full list of exceptions where the declarant’s availability is immaterial?
Evidence
BUMPERS
- present sense impression
- excited utterance
- state of mind
- statements made for the purposes of medical diagnosis or treatment
- past recollection recorded
- business records
- public records
- learned treatises
- judgment of previous conviction
- records of vital stats
- statements in ancient docs
- market reports and commercial publications
- marriage and baptism certificates
etc.
hearsay / exceptions / declarant’s availability immaterial
what is Present Sense Impression?
Evidence
statement made while declarant was perceiving the event or immediately after, describes or explains the event
NOT excluded as hearsay
like narrating what’s happening in real time to someone on the phone
hearsay / exceptions / declarant’s availability immaterial
what is Excited Utterance?
Evidence
statement relating to a startling event or condition while the declarant is still under the stress of excitement caused by the event or condition
NOT excluded as hearsay
hearsay / exceptions / declarant’s availability immaterial
what is the State of Mind (mental, emotional, physical condition) exception?
Evidence
statement of a declarant’s then-existing physical, mental, emotional condition is ADMISSIBLE to prove the existence of that condition
statement of intent can be used to prove action in conformity with that intent
NOT excluded as hearsay
hearsay / exceptions / declarant’s availability immaterial
what is the rule for public records? (general)
Evidence
ADMISSIBLE if relate to
1. activities
2. observations AND
3. factual findings and conclusions
hearsay / Constitutional limits
what is the Confrontation Clause (6th Amendment)?
Evidence
- criminal defendants have the right to be confronted with the witnesses against them
- witnesses must testify in front of the accused (face-to-face preferred)
- out of court statements that are testimonial give rise to Confrontation Clause problems
remember that testimonial means if declarant would reasonably expect it to be used in a prosecution
hearsay / Constitutional limits
when can testimonial statements be admitted under Confrontation Clause (6th)?
Evidence
only be admitted against a criminal defendant IF
1. declarant is now unavailable AND
2. declarant had a prior oppy to cross examine that declarant
when is a prior inconsistent statement admissible nonhearsay?
Evidence
substantively
(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding AND
(2) the declarant testifies and is subject to cross-examination
impeachment
extrinsically for impeachment purposes if the witness has the opportunity to explain or deny, and the adverse party can examine the witness about, the statement
hearsay / non hearsay
rule for using prior inconsistent statement for impeachment
Evidence
- intrinsic evidence - examining witness about the statement OR
- extrinsic evidence IF (1) witness has oppy to explain or deny AND opposing party can question witness about it
OR
(2) justice so requires
internal affairs / duty of loyalty
what must partners NOT do under duty of loyalty?
Partnerships
- compete with partnership business
- advance an interest that is adverse to the partnership
- usurp a partnership oppy
internal affairs / duty of care
what must partners NOT do under the duty of care?
Partnerships
- engage in grossly negligent or reckless conduct
- engage in intentional misconduct
- engage in a knowing violation of law
partnership agreement may not unreasonably reduce the duty of care
internal affairs / dividing control
give examples of situations of involuntary dissociation
Partnerships
- event triggered in partnership agreement
- expelled pursuant to partnership agreement
- unlawful to continue to do business with that partner
- court may order that they disassociate
- partner goes bankrupt
- partner dies
- partner becomes incapacitated
- one of the entities dissolves (if entity not human)
internal affairs / dividing control
what are the consequences of dissociation?
Partnerships
if partnership dissociates –> former parter has no right to participate in management of the partnership + partner no longer has any duties
if partnership continues –> must buy out the dissociated partner’s interest
all partners (including any properly dissociated partners) must agree to waive the right to terminate the partnership (Essay 4982)
what is a partnership at will?
Partnerships
open-ended partnership with no fixed term
dissolved when any partner chooses to dissociate
what is a partnership for a term or undertaking?
Partnerships
partnership may be dissolve when the term expires or when the undertaking is complete
What is the parol evidence rule for a sale of goods?
Contracts
Evidence of an additional promise made before the written contract was entered into that does not contradict the contract may be considered unless the parties would certainly have included the term in the contract.
what is the parol evidence rule?
Contracts
prevents a party to a written contract from presenting extrinsic evidence of a prior or contemporaneous agreement that contradicts the terms of the contract as written
whether any of the earlier oral or written terms are part of the parties’ contract, even though they are absent from the parties’ written agreement
irrevocable offers
what are the requirements for a firm offer?
Contracts
firm offer must be (1) written (2) signed by the offeror (a merchant) and (3) contain an explicit promise not to revoke
firm offer can include a condition
what is the rule for counteroffers under the common law?
Contracts
mirror image rule
terms in the acceptance must match the offer exactly or it is a counteroffer (not acceptance)
UCC / Counteroffers
what is the rule for counteroffers under the UCC?
(1) definite and seasonable expression of acceptance (2) sent within reasonable time is an acceptance (3) even though additional or different terms (4) unless acceptance is expressly made conditional on the additional/different terms
more forgiving of accpetnaces that don’t match exactly
doens’t matter whether parties are merchants
UCC 2-207
UCC / Counteroffers
when does an additional term in a counteroffer control?
only if
1. both parties are merchants
2. new term doesn’t materially alter the deal
3. initial offer didn’t expressly limit acceptance to its terms AND
4. offeror doesn’t reject/object the new term within a reasonable time
UCC / Counteroffers
when does a different term in a counteroffer control?
(accpetance has a different term from the initial offer)
knock-out rule (majority) - neither term governs, UCC gap-filling rules apply
minority states - intial offer controls
what are the requirements for confirming memos under UCC?
(1) written confirmation (2) sent within reasonable time (3) operates as an acceptance
Under the UCC, an exception to the SOF applies when
(1) both parties are merchants
(2) a memorandum sufficient against one party is sent to the other party who has reason to know of its contents, and
(3) the receiving party does not object in writing within 10 days of receipt of the memorandum.
In that case, the contract is enforceable against the receiving party even though he has not signed it.
think of early agreement + later writing with additional terms
does contract modification require new consideration under common law?
preexisting duty rule - promise to do something that you are already legally obligated to do is NOT consideration
but exceptions
common law / contract modification
what are the exceptions to the preexisting duty rule?
- change in performance
- 3p promising to pay
- unforseen difficuties that would excuse performance
common law / contract modification
is a modification binding that promises partial payment for release from a debt obligation?
ask whether the debt is currenlty due and undisputed
if so, modification is NOT binding
what is the rule for contract modification under the UCC?
ask whether the modification is made in good faith
if so, is it IS binding even without new consideartion
consideration substitute
what are the elements of promissory estoppel / reliance?
PDI - promise made, deterimental reliance, injustice
- promise is made that would be reasonably expected to induce reliance
- promsie does indeed take detrminental action in reliance on the promise AND
- injustice can only be avoided by enforcement of the promise
don’t need to prove #2 for charitable gift promise
consideration substitute
what are the elements of a quasi-contract?
- plaintiff confers a measurable benefit on the defendant
- plaintiff reasonably expected to get paid AND
- it woud be unfair to let the defendant keep the benefit without paying
look for oppy to decline or a good reason why there wasn’t an oppy to decline
defenses to contract formation
what are the elements of a mutual mistake?
Contracts
allows the adversly affected party to rescind if
1. there is a mistake of fact at the time the deal was made
2. mistake relates to a basic assumption of the contract + has material impact on the deal
3. impacted party didn’t bear the risk of mistake
statute of frauds
how do you satisify the SOF for a writing signed by the party against whom the contract is asserted?
Contracts
both signatures are NOT required
the writing does NOT have to be a formal contract
must cover the fundamental facts
1. contract has been made
2. ID the parties
3. contain the essential elements of the deal
statute of frauds
how do you satisify the SOF for goods?
Contracts
UCC world!
- signed writing satisifes - need quantity, price not required
- part performance satisifies but only for the quantity delivered and accepted
- custom-made goods are EXEMPTED from SOF, can satisify SOF as soon as maker makes a substnatial beginning towards manufacturing
- judicial admission (incl. statement during testimony or a pleading) satisifies
- confirming memo - failure to object to a confirming memo within 10 days will satisify SOF if both parties are merchants
The UCC requires a contract for the sale of goods for $500 or more be evidenced by a writing that
(1) identifies the subject matter of the agreement,
(2) identifies the parties,
(3) contains a quantity term, and
(4) is signed by the party against whom enforcement is sought—i.e., the “party to be charged.”
A signature includes any authentication that identifies the party to be charged (not just a handwritten signature), such as a letterhead on the memorandum.
The writing need not be an actual contract. Even a series of correspondence between the parties may suffice as a writing.
parol evidence rule
does the PER apply to later written or verbal statements about the deal?
Contracts
nope
parol evidence rule
what steps should I follow for PER?
Contracts
- look at what the agreement entails - have the parties reduced their contract to a comprehensive writing? if so, earlier statemetns are not part of the deal
- have the parties created an integrated writing?
parol evidence rule
what are exceptions to the PER? situations where the PER doesn’t bar earlier evidence
Contracts
- will not bar evidence relevant to a defense against contract formation
- even if a writing is completely integrated, a party can intro evidence of a second separate deal
- even if a writing is completly integrated, party might be able to intro evidence of a prior comm that is designed to interpret an ambiguous term in the final agreement
warranties
what are the three types of warranties?
Contracts
- express warranty
- implied warranty of merchantability
- implied warranty of fitness for a particular purpose
warranties
what is an express warranty (incl the test)?
Contracts
promise that affirms or describes goods + is part of the basis of the bargain unless it is merely the seller’s opinion
use of a sample or model creates an express warranty
warranties
what is an implied warranty of merchantability?
Contracts
triggered only when the seller is a merchant dealing in the goods at issue
warrants that the goods are fit for ordinary commercial purposes
can be disclaimed by using “as if” if (1) disclaimer uses the term “merchantability” and (2) must be conspicuous if in writing
can be disclaimed orally
warranties
what is an implied warranty of fitness for a particular purpose?
Contracts
triggered when buyer relies on a seller’s expertise to select a special type of good that will be used for a special purpose
warrants that the goods will satisfy this special purpose
can be disclaimed if (1) conspicuous and (2) disclaimer is in writing
non merchant can extend this warranty if the buyer relies on any seller’s expertise
conditions
what is the standard for implied conditions in the UCC? / constructive condition of exchange
Contracts
perfect tender: (1) perfect goods and (2) perfect delivery
exceptions: contract explicitly changes default rule, installment contracts
conditions
what is the standard for implied conditions in the common law? / constructive condition of exchange
Contracts
substantial performance if there is not a material breach
only satisfied constructive condition of exchange if failure is not willful
divisible contracts
implied conditions / UCC
who bears the risk of loss? (give the full test)
Contracts
- does the contract already deal wtih this problem? if so, that controls.
- has either party breached? (typically part of contract)
if so, breaching party bears risk (even if breach is totally unrelated to delivery damage) - if no breach and goods are being shipped, what type of delivery contract is it?
shipment - buyer bears risk
destination - seller - all other cases: is the seller a merchant?
yes, risk of loss is with seller until buyer receives the goods
no, risk of loss moves to the buyer when seller tenders the goods
remedies for breach / money damages
what are the 3 major limits on the calc of expectation damages?
Contracts
- expectation damages must be proven with reasonable certainty
- unforeseeable consequential damages
- mitigation
3p beneficiary contracts
when will a 3p NOT lose enforcement rights? / when the rights of beneficiary vests
Contracts
if any one of the following is true
1. beneficiary determinately relies on the rights
2. beneficiary manifests assent to the contract
3. beneficiary filed a lawsuit to enforce the contract
is a delegatee liable for breach (in general)?
Contracts
not liable unless they receive consideration from the delegating party
UCC / auction
can a good sold at auction be withdrawn once the auctioneer calls for bids?
Contracts
depends on type of auction
reserve auction - may withdraw goods prior to completion of sale
no-reserve auction - goods cannot be withdrawn after auctioneer calls for bids
in an auction, when can a bidder withdraw their bid?
Contracts
bidder has right to withdraw a bid until the auctioneer announces completion of the sale
under reserve OR no-reserve auction
is consideration required for assignment? what happens if there is consideration vs. no consideration?
Contracts
not required to have consideration
without consideration –> revocable by signer unless (1) obligor already performed (2) doc symbolizing the assigned right has been delivered to the assignee, (3) written assigns signed by the assignor has been delivered to the assignee OR (4) the assignee has determinately relied on the assignment
Parol Evidence Rule
what type of evidence is allowed under this Rule?
Contracts / Evidence
allows evidence that might add to the terms
but EXCLUDES evidence that would contradict the terms of the agreement
UCC
how can a seller accept a purchase order (an offer)?
Contracts
- shipping the goods
terms of the offer are the contract terms
effective when shipment is made
OR - promising to ship the goods
if merchants: contract terms are terms of the offer + battle of the forms
if not merchants: terms of offer, new terms are proposals
major difference between implied in fact vs. implied in law contract
Contracts
implied-in-fact contract is created ONLY when conduct indicates assent or agreement
implied-in-law = quasi-contract
factors that allow a party to cancel when there is temporary impracticability by the other side
Contracts
degree of uncertainty relating to the
nature and duration of situation
extent to which a delay in making substitute arrangements would have prevented the entire contract
when are goods in a contract identified?
Contracts
- if goods already exist + identified - when contract is made
OR - (future goods) - earliest of when goods are shipped, marked, or otherwise designated by the seller
when is a contract NOT assignable?
Contracts
if assignment would
1. materially change duty of obligor
2. materially inc burden or risk on obligor
3. materially impair obligor’s chance of obtaining return performance OR materially reduce value of that return promise
4. forbidden by statute or precluded by PBPL
5. validly precluded by contract
rule statement queen!
whether the contract is subject to the Statute of Frauds
Contracts
Contracts that fall within the Statute of Frauds are unenforceable unless evidenced in writing and signed by the party to be charged.
A contract for the sale of goods for a price of $500 or more is subject to the SOF.
what are accord and satisfaction?
parties to an earlier contract agree that performance will be satisfied instead by the completion of a different performance
the new performance is the accord
excusal of the initial performance obligation is the satsification
UCC installment contracts
Contracts
each installment
buyer MAY REJECT nonconforming goods that can’t be cured OR substantially impairs the value of the installment
buyer MUST ACCEPT conforming shipment OR nonconforming shipment with seller’s promise to cure
whole contract
buyer can cancel future installments if nonconforming goods substantially impair value
formation of agency relationship
when is an agency relationship created? (what are the components)
Agency
- principal manifests assent to the agent and agent manifests assent or otherwise consents
- agent acts on principal’s behalf AND
- agent’s actions are subject to principal’s control
ABC ; make sure to list these in an exam answer
actual express authority
what is required for actual express authority?
Agency
can be created via
- oral or written words
- clear, direct, and definite language OR
- specific detailed terms and instructions
agent must believe they are doing what the principal wanted them to do (subjective standard) + agent’s belief must be reasonable (objective standard)
look at communication b/t agent and principal
actual implied authority
what is required for actual implied authority?
Agency
agent can take whatever actions (designated or implied) are properly necessary to achieve principal’s objectives based on agent’s reasonable understanding of the manifestations and objectives of the principal
implied authority act within accepted business customs or general trade usage w/in an industry (agent must be aware of these before they act)
apparent authority
what is apparent authority?
Agency
derives from a reasonable reliance of a 3p on that party’s perception of the level of authority granted to the agent by the principal
perception is based on principal’s behavior
does not require 3p to establish that they acted in reliance of principal’s manifestations or suffered a determined
what is required for estoppel?
Agency
principal is liable for the appearance of authority arising solely from the principal’s failure to take reasonable steps and use ordinary care
- 3p is justifiably induced
- to make a detrimental change in position b/c
- that 3p believed the transaction was entered into for the principal AND
- the principal (a) intentionally or carelessly caused the belief or (b) failed to take reasonable steps to notify them of the facts
tip
- if deciding whether principal is bound by actions of agent, think about this
- if deciding whether agent is bound, think about this
Agency
- principal - actual vs. apparent authority
- agent - undisclosed vs. disclosed principal
veil piercing
what factors does a court consider when deciding to pierce the veil?
Corporations
- alter ego - investor/SH treated corporation just like itself
- undercapitalization
- fraud / fraud-like behavior
- failure to follow corporate formalities (doesn’t apply to LLC)
sale of securities / federal causes of action
what is required for 10b-5 action from a private plaintiff?
Corporations
- plaintiff purchased or sold the security
- transaction involves interstate commerce
- defendant engaged in fraudulent or deceptive conduct - making an untrue statement of a material fact (does not include opinions or predictions)
- conduct related to material info
- defendant acted with scienter - intentionally or recklessly
- plaintiff relied on D’s conduct
- P suffered harm
sale of securities / insider trading
what are the elements of insider trading (section 16(b))?
Corporations
- applicable companies –> traded on national securities exchange OR assets over $10mm and over 500 SH
- corporate insiders - BOD, officers, SH with 10+%
- generally only transactions during or after becoming an insider (not before)
- during any 6 month period, corporate insider who buys and sells the stock is liable to corporation for any profits
reason of buying/selling and having non-public info is irrelevant
shareholder meetings
proxy - what is required to be legally effective?
Corporations
- must be in writing
- signed by SH as of record date
- sent to secretary of corporation
- state that it authorizes someone else to vote SH’s shares AND
- cannot be valid for more than 11 month unless otherwise specified
SH litigation
derivative lawsuits
Corporations
- SH is suing on behalf of the corp for injury caused to the corporation
- must be SH at time of harm and hold shares throughout the litigation (standing)
- must fairly and adequately represent the interests of corporation
- plaintiff SH has to first file a written demand BOD bring the lawsuit before SH can bring the suit (but demand futility defense in some states)
Duty of Care
Corporations
- act with care that a person in a like position would reasonably believe appropriate under similar circumstances
- D/O owe this to corporation
- Business Judgment Rule
- use your special skills (accounting, law)
- reliance defense - D/O is entitled to rely on expertise of officers, other employees, outside experts, committees
Business Judgment Rule
Corporations
In making a business decision, there is a rebuttable presumption that the directors acted on an informed basis, in good faith, and their actions were in the best interest of the company, in the absence of fraud, illegality, or self-dealing.
Duty of Loyalty
Corporations
- may not receive an unfair benefit to the detriment of the corporation w/o effective disclosure and ratification
- self-dealing transitions
- corporation opportunity doctrine - usurping or stealing a corp oppy
ways to cleanse
1. disclosed and ratified by vote of majority of disinterested directors
2. “” disinterred SH
3. demonstrate that the transaction was fair (best defense)
director’s DOL in usurping a corporate opportunity instead of first offering it to corporation –> what test applies
Corporations
trying to determine whether the oppy is the type where it must first be offered to the corp
- interest or expectancy test
whether the corporation has an existing interest or an expectancy arising from an existing right in the opportunity
expectancy can also exist when the corporation is actively seeking a similar opportunity
- line of business test
whether the opportunity is within the corporation’s current or prospective line of business
key is how expansively the corporation’s line of business is characterized
piercing the corporate veil - mere instrumentality test
Corporations
- members dominated the entity in such a way that the LLC had no will of its own
- members used that domination to commit a fraud or wrong
- control and wrongful action proximately caused the injury
piercing the corporate veil - unity of interest and ownership test
Corporations
petitioner must demonstrate that there was
such a unity of interest and ownership b/t entity and members that, in fact, the LLC did not have an existence independent of the members and
that failure to pierce the veil through to the members would be unjust or inequitable
contracting out of duty of loyalty
Corporations
operating agreement can amend the duty of loyalty as long as it is not manifestly unreasonable
conflict of interest - define it!
Corporations
- self-dealing
- any transaction b/t director and corp that would normally require approval of the board of directors AND that is of such financial significance to the director that it would reasonably be expected to influence the director’s vote on the transaction
- can be direct or indirect
- must be financial and material
tip
MPT section
- make sure to include lots of analysis in each part
- if no structure given, see if one of the cases gives a structure
- write numbers in blue pen to correspond to issue then cross out numbers
- make sure to include a conclusion section
choice of law / limits
constitutional limits
Conflict of Laws
- Due Process Clause (14th) - forum state may apply to its own law to a particular case only if it has significant contact or aggregation of contacts so that it’s neither arbitrary nor fundamentally unfair
- Full Faith and Credit - forum state to apply law of another state when forum state has no contacts or interest in the controversy
state may apply its own substantive law to an issue
ONLY IF state has a significant contact or aggregation of contacts with the issue
such that application of its own law is neither arbitrary nor fundamentally unfair
choice of law / contract clause
courts will enforce a contractual choice of law provision IF (give the test)
Conflict of Laws
- valid agreement with effective choice of law clause
- applicable to the lawsuit under terms of contract
- reasonably related to the lawsuit AND
- not in violation of pbpl of forum state or another interested state
choice of law provisions are generally enforceable
choice of law / approaches
list the approaches
Conflict of Laws
- traditional approach / vested rights approach / 1st Restatement
- governmental interest analysis
- most significant relationship / 2nd Restatement
choice of law / approaches
traditional / vested rights approach (R1st)
Conflict of Laws
law that controls is the law of the jurisdiction where the parties’ rights were vested
(act or relationship that gave rise to the cause of action occurred or was created)
court only needs to determine where legal right vested + apply law of that place
choice of law / approaches
governmental interest approach
Conflict of Laws
presumed that forum state will apply its own law, but another state may have a greater interest
state has interest in applying conduct-regulating law when wrongful conduct occurs w/in its territory or domiciliary is injury
state has interest in applying loss-shifting law when it would benefit a state domiciliary
conduct-regulating laws - designed to regulate conduct, label conduct as wrongful
loss-shifting laws - determine who can/can’t be liable
choice of law / approaches
most significant relationship analysis (R2d)
Conflict of Laws
court must determine which state has the most significant relationship to the issue in question
apply guiding principles (key ones below)
- promote relevant policies of the forum and other interested states
- protect systemic interests like certainty, uniformity, predictability, and simplicity
- protect justified expectations of the parties for planned transactions
additional factors for certain areas of law (torts, contracts, etc.)
recognition of foreign judgments
what laws apply if a federal court is exercising federal question jurisdiction
Conflict of Laws
federal law always
what laws apply if federal court has diversity jurisdiction
Conflict of Laws
federal district court in diversity case must apply choice of law rules of the state in which it sits
Klaxon Rule
recognition of foreign judgments
federal court with state judgment
Conflict of Laws
federal courts must give full faith and credit to state court judgments
recognition of foreign judgments
state court with federal judgment
Conflict of Laws
if federal court had diversity jurisdiction over an action issues a judgment, then state court must give that judgment the same res judicata effect that judgment would have been given by courts of state where federal court was located
recognition of foreign judgments / Erie
Erie doctrine (generally)
Conflict of Laws
federal courts exercising diversity jurisdiction must apply the
* substantive law of the states in which they sit as the law has been interpreted by the highest state court
* federal procedural
it is substantive if it is outcome determinative in a direct and certain enough way that it encourages forum shopping between state and federal court
MEE
- could write issue statements in yes/no + because format
mens rea / common law
malice
common law
D acts in reckless disregard of a high degree of harm, D realizes the risk and acts anyway
Arson and Murder
“I AM certain there are two malice crimes”
mens rea / MPC
purposely
MPC
D’s conscious objective is to engage in the conduct or to cause a certain result
mens rea / MPC
knowingly (or willfully)
MPC
D is aware that
1. their conduct is of the nature required to commit the crime
AND
2. the result is practically certain to occur from this conduct
mens rea / MPC
recklessly
MPC
D acts with a conscious disregard of a substantial and unjustifiable risk that
constitutes a gross deviation from the standard of conduct of a law-abiding person
mens rea / MPC
negligently
MPC
D should be aware of a substantial and unjustifiable risk
and acts in a way that grossly deviates from the standard of care of a reasonable person in the same situation
principals, accomplices, aiders, abettors
what is an accomplice liable for?
both the planned crime + any other foreseeable crimes that occur in the course of the criminal act
crimes that are the natural and probable consequnece of their conduct
principals, accomplices, aiders, abettors
mental state of accomplices
majority + MPC approach
accomplice (1) must act with the purpose of promoting or facilitating the commission of the offense
AND
(2) must intend that their acts will assist or encourage the criminal conduct
minority
accomplice is liable IF they intentionally or knowingly aids or causes another person to commit an offense
negating mens rea / mistake
mistake of fact
general intent crimes
defense ONLY IF mistake is reasonable + goes to criminal intent
specific intent crimes
are a defense whether the mistake is reasonable or unreasonable
question is whether the D held the mistaken belief
negating mens rea / insanity
tests for insanity
D has the burden of proving insanity either by a preponderance of the evidence OR clear and convincing evidence
- M’Naghten test
D either did not know the nature of the act OR did not know the act was wrong B/C OF mental disease or defect - Irresistible impulse test
D has a mental disease or defect that prevents D from controlling themself - Durham rule
D would not have committed the crime BUT FOR having a mental disease or defect - MPC
due to a mental disease or defect, D did not have substantial capacity to appreciate the wrongfulness of their actions OR to confirm their conduct to the law
inchoate crimes / conspiracy
elements of conspiracy under federal law, MPC, majority states
MPC
- agreement
- b/t 2+ people
- to commit an unlawful act
- performance of an overt act (lawful or unlawful) in furtherance of the conspiracy
MPC doesn’t require overt act if conspiratorial crime is felony 1st or 2nd
#4 is difference from common law
inchoate crimes / conspiracy
how do you withdraw from a conspiracy?
MPC / federal law
conspirator can withdraw prior to the commission of any overt act by communicating her intention to withdraw to all other conspirators OR by informing law enforcement
after an overt act, conspirator can withdraw only by helping to thwart the success of a conspiracy
common law
impossible to withdraw b/c crime is complete the moment the agreement is made
homicide
what causation is needed for homicide?
must be a causal relationship b/t D’s actions and what happened to victim
actual causation - victim wouldn’t have died but for what D did
AND
proximate causation - D’s act is a foreseeable cause of victim’s death / death is the natural and probable result of the conduct
independent actions by 3p are not a foreseeable cause
homicide / first degree murder
what is required for first degree murder?
- specific intent crime
- deliberate and premeditated murder OR
- a killing that results during the commission of an inherently dangerous felony
felony murder is frequently classified as M1
homicide / common law murder
definition of common law murder
unlawful killing of another human being committed with malice aforethought
lawful killing of another is not murder (ex. state execution)
- intent to kill - D acted with desire that the victim end up dead, intent need not be premeditated
- intent to inflict serious bodily harm - D intended to hurt the victim badly and victim died
-
abandoned or malignant heart or depraved heart - D acted with cavalier disregard for human life and death resulted
D must realize their conduct is really risky, but doesn’t need intent regarding outcome of actions
majority + MPC: D must actually realize there is danger
minority: reasonable person would have recognized the danger -
felony - death occurred during the commission or attempted commission of a dangerous felony (BARRK felonies)
dangerous felony must be independent of killing itself
can involve someone who resists the felony
includes when bystander is killed during a felony
can include 3p killed by resistor or police (majority uses agency theory - D is only responsible for crimes of D’s agents)
homicide / manslaughter
voluntary manslaughter
- occurs when a D intends to kill the victim, but mens rea is less blameworthy than murder
- acted in heat of passion or under extreme emotional disturbance
- test: is this situation one in which most people would act w/o thinking and w/o time to cool off?
ex. walking in to your spouse in bed with someone else (not hearing about it)
homicide / manslaughter
involuntary manslaughter
- criminally negligent killing OR killing someone while committing someone other than those covered by felony murder (BARRK)
- D who engages in a criminally negligent conduct and causes a death
property crimes / robbery
elements of robbery
common law
robbery = larceny + assault
- taking
- another person’s property
- without their consent
- with intent to deprive them of it permanently
- taking occurs from victim’s person or in their presence
- either by violence or putting victim in fear of imminent physical harm
battery
elements of battery
Crim
- unlawful (consent is a complete defense)
- application of force
- to another person
- that causes bodily harm OR an offensive touching
general intent crime
doesn’t require actual physical contact b/t D and victim
arrests + seizures
what is a seizure
- occurs when an officer, by means of physical force or show or authority, intentionally terminates or restrains a person’s freedom of movement
- whether a reasonable person would feel free to disregard the officer
- stop and frisk / Terry stop
- traffic stops
- arrests
- warrants
- warrantless arrests
- searches incident to arrest
arrests + seizures
stop and frisk / Terry stop
- officer stops an individual when officer has reasonable suspicion based on articulable facts to believe suspect is or about to be engaged in criminal behavior
- officer’s reasonable mistake of law can give rise to reasonable suspicion
- can pat down for only weapons, not evidence
- if pat down reveals objects whose shape makes their identity obvious, officer can seize
- if probable cause develops during a Terry stop, officer can make an arrest
arrests + seizures
arrests
- must be probable cause to believe that the idv has committed a crime
- can be w/ or w/o arrest warrant
arrests + seizures
traffic stops
- officers must have reasonable suspicion to stop a car
- once lawful stop, officers may pat down an occupant for weapons IF they have reasonable suspicion that person has a weapon
- do not need reasonable suspicion at a checkpoint (stop everyone)
arrests + seizures
arrest warrants
authorizes an officer to arrest a particular person
- must be issued by a neutral and detached magistrate
- must be based on finding of probable case to believe that they committed a particular crime AND
- name the person and ID the offense
searches
requirements for search warrant
- must be issued by neutral magistrate
- must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime
- must describe the property and place to be searched with particularity
generally govt needs search warrant to conduct a search if there is a reasonable expectation of privacy
ex. bank robbery –> loot is fruit of the crime, gun is instrumentality, bloody shirt robber wore is evidence
arrests + seizures
in a search incident to arrest that occurs in a car, where can officer search?
passenger compartment of vehicle as long as suspect still has access to vehicle at the time
can’t start searching the car once suspect is in the back of the squad car b/c no longer a threat to officers and no longer risk of destruction of evidence
(but can search car if it is reasonable that evidence of the offense of arrest might be found in the vehicle)
searches
elements of a search
when (1) govt conduct violates a (2) reasonable expectation of privacy
govt conduct
* physical intrusion upon private property
* can occur without a physical intrusion
* using some types of technology (ex. thermal imaging device) can constitute a search
searches / warrant exceptions
list major exceptions to warrant requirement
ESCAPES from the warrant requirement
Exigent circumstances
Search incident to arrest
Consent
Automobiles
Plain view (if officer is legally present)
Evidence obtained from administrative searches
Stop and frisk
searches / warrant exceptions
exigent circumstances
- if officers are in hot pursuit or there is an immediate danger, may conduct a search w/o a warrant
- officers are entitled to secure premises while they obtain a warrant, but sometimes not sufficient
- does not apply if police created the exigency
- need warrant for DUI blood draw absent exigent circumstances
searches / warrant exceptions
automobiles
if police have probable cause to believe car contains contraband, can search those parts of the vehicle that might contain contraband even without an arrest
ex. can’t search the money holder for a machine gun (obvi too small to hold the gun)
interrogations / 5th Amend
what is a custodial interrogation?
Miranda warnings are required before custodial interrogations
custodial
person being questioned has been arrested or is otherwise not free to leave
if not in custody, no warning is required
interrogation
official asking questions or engaging or words or conduct that police know/should know will elicit a response
does not include volunteered statements or routine booking questions
5th Miranda vs. 6th Right to Counsel
how do you invoke each?
how to invoke
5th: must be affirmatively invoked by D
6th: auto attaches once there has been an indictment, info, or other formal charges
exists unless D knowingly and intelligently waives
charges it applies to
5th: applies to custodial interrogation for ANY charge, but not to non-custodial interrogation
6th: ONLY applies to offense for which D has actually been charged (including any lesser-included offenses)
doesn’t apply to unrelated charges - D can be questioned still
applies whether you’re in custody or not
applies to all felony prosecutions + any misdemeanor prosecutors for which jail time or suspended jail sentence is imposed
all critical stages
6th Amend / identification procedures
is lineup evidence at trial admissible?
If D moves to suppress evidence that a witness picked the D out of lineup, court will consider whether the lineup was impermissibly suggestive
if so, court can exclude the testimony
exclusionary rule
what is the exclusionary rule (in general)?
illegally obtained evidence (physical evidence obtained by illegal search OR statement from illegal interrogation) is inadmissible at criminal trial of person whose rights were violated to prove their guilt
applies at trial, not pretrial proceedings (like grand jury)
evidence obtained in violation of 4th, 5th, or 6th
applies to states through 14th
exceptions
* knock and announce
* inevitable discovery
* independent source
* attenuation in causal chain
* good faith
* negligence (half exception)
pretrial procedures
what’s needed for guilty plea to be valid?
D must knowingly and intelligently waive these rights through plea allouction where judge asks questions
- informs D of his rights and ensures that D understands
- informs D of possible sentences
- informs D of immigration consquences (but judge isn’t required to inform of other collateral consequences)
- determines that plea didn’t come from force, coercion, threats, or promises
- makes sure there is a factual basis for the plea
trial process / speedy and public trial
factors court looks at for Speedy Trial Clause under 6th claim
- length of delay
- reason for delay
- whether D asserted their right to a speedy trial AND
- risk of prejudice to D
6th / Confrontation Clause
what does the Confrontation Clause guarantee D?
- right to confront witnesses against them (Crawford Doctrine)
if statement is testimonial, 6th bars admission IF
declarant is unavailable AND
D had no prior oppy to cross-examine the witness
if non-testimonal statement, look at rules of evidence
- right to compulsory process to produce their own witnesses (Bruton Doctrine)
D’s own statements are always admissible against him even if the D doesn’t testify at trial
if co-D, a non-testifing co-D’s statemetns are NOT admissible against the other D
defense counsel
effecitve assistance test
Strickland test - assesses whether D was denied effective assistance
1. performance - did defense counsel’s performance fall below wide range of reasonable conduct that lawyers might engage in
2. prejudice - reasonable probability that the result would have been different if counsel performed effectively
sentencing / Apprendi Doctrine (6th)
what is the Apprendi Doctrine under 6th?
6th right to jury trial prohibits judges from enhancing sentences beyond statutory maximums based on facts other than those decided by jury beyond a resonable doubt
BUT this doesn’t apply to sentence enhancement based on prior criminal convictions (don’t need to be found by a jury)
ALSO judge is allowed to determine whether offenses are consecutive or concurrent (MBE Practice Exam #4)
how to determine if a confession was voluntary
Crim Pro MEE 282
- voluntary confessions are not protected by Miranda
- involuntary ONLY IF police coerced D into making it
- based on totality of circumstances - conduct of police, characteristics of D, time of the statement
use / derivative use immunity + transactional immunity
Crim
use and derivative-use immunity (grant the woman immunity from any future use against her of her grand jury testimony or any evidence derived from it)
prevents govt from using self-incriminating testimonial communications + any evidence derived from them against the suspect in any way that could lead to a criminal prosecution
not if transactional immunity (grant the woman immunity from any future prosecution for any crime she might disclose in the course of her testimony)
protects the suspect from being prosecuted for any crimes associated with self-incriminating testimonial communications
rule statements for 4th, 5th, 6th
remember to write “as applied to states through the 14th”
jurisdiction / intro
what are the types of jurisdiction?
- SMJ - power of ct to decide this type of case
- PJ - power of ct to decide the rights and liabilities of this D
- Venue - which districts have proper venue (among cts with SMJ + PJ)
SMJ / Diversity Jurisdiction / citizenship
what is the general rule for Complete Diversity?
- complete diversity is required
- every citizenship represented on P’s side must be different from every citizenship represented on D’s side
SMJ / Diversity Jurisdiction / amount in controversy
can you aggregate claims if there is (1) one P and one D, (2) one P + multiple D, and (3) multiple P + one D?
one P + one D
yep, P can aggregate all of her claims regardless of whether the claims are related
one P + multiple D
P may not aggregate claims
claims against each D must meet $75k
multiple P + one D
P may not aggregate claims
each P must seek $75k+ from D
SMJ / Removal Jurisdiction
what is the general rule for removal?
removal is proper ONLY if the case originally could have been brought in federal court
if the P chose to sue in federal court in the first place, would the fed ct had SMJ?
only D can remove
SMJ / Removal Jurisdiction / Diversity Cases
when is removal based on diversity jurisdiction allowed?
only if
1. complete diversity
2. amount in controversy
AND
3. action is brought in a state of which no defendant is a citizen
must remove within one year of the commencement of action in state court UNLESS P acted in bad faith
if in D’s home state court, D can’t remove
SMJ / Supplemental Jurisdiction
what is the basic rule for supplemental jurisdiction?
allows a federal court with SMJ over a case to hear additional claims over which the ct would not independently have jurisdiction if ALL the claims constitute the same case or controversy
same case or controversy if arise out of same common nucleus of operative fact, same transaction or occurrence
not required to expand its jurisdiction
SMJ / Supplemental Jurisdiction in Federal Question
how does supplemental jurisdiction apply to federal question cases?
focus on the anchor claim (the federal question claim not the state law claim)
if both claims are out of the same common nucleus of operative fact, fed ct may exercise supp jurisdiction over state law claim
doesn’t matter whether those claims involve joinder
