MC Flashcards
Examples of political, nonjusticiable questions (because they’re committed by the Constitution to a different branch of government)
Political questions:
- Deployment of troops
- recognition of foreign governments
- Impeaching president or other federal officials
- Racial gerrymandering is justiciable, but partisan gerrymandering is considered a political question
Congress’s ability to regulate for general welfare
Congress is NOT allowed to create legislation “for general welfare”
But they have broad power to spend $$ for general welfare
Encumbrances?
Define & give examples
An encumbrance is a right or interest that exists in someone other than the owner of real property that restricts or impairs the transfer of property
Ex: mortgage/liens are encumbrances but if they’re paid off by closing (seller can use purchase price to pay off), then title is marketable
Ex: easements, covenants, purchase options
All protections of the Constitution apply to the states through the 14th Amendment EXCEPT for what limited exceptions?
(1) requirement to quarter/house soldiers
(2) requirement of a grand jury indictment for a criminal charge
(3) right to jury trial for a civil matter
A sold land to B (who has title insurance), who sold land to C, who sold land to D (the current owner) with quitclaim deed.
D then discovered outstanding mortgage that predated all previous conveyances. Who can D sue?
D can sue B. And B can recover from title insurance company, even though B no longer owes the land.
If D sued insurance company directly, D would not get anything
Builder of new house sold to Buyer. Buyer sold to Woman. Woman found latent defects. If Woman sues successfully, who does she sue and why does she succeed?
Woman can sue the Builder and if she’s successful, it means they were in a jurisdiction where the implied warranty of habitability/fitness/quality of new home construction is enforceable by a subsequent purchaser
Equitable conversion
(When does buyer become the owner vs. when does buyer get actual legal title)
This is about liability during the period between contract and closing.
When contract is signed, buyer is deemed the owner but seller still has “legal title.”
Legal title only transfer from seller to buyer at closing
Risk of loss
(equitable conversion - maj rule)
(uniform vendor and purchaser act - min rule)
“no applicable statute” = maj rule applies
MAJ RULE:
if property damaged prior to closing, risk of loss is imposed on the buyer. Buyer would have to cover any losses + pay purchase price to seller
Exceptions (aka when seller bears loss):
- it’s a NEW CONSTRUCTION: the constructor would be required to rebuild the whole thing
- if loss is caused by seller’s own negligence
- if at the time of loss, title was unmarketable
MIN RULE:
- places risk of loss on seller
Deed
definition and validity requirements
Document that serves to pass legal title from grantor to grantee when it is (1) lawfully executed and (2) properly delivered
Requirements:
- identification of the parties (cannot be “leaders of all churches in York County” which is too broad)
- in writing and signed by grantor. grantee need not sign
- words of present / actual intent
- adequate land description
- proper delivery (1.g. recording, physical delivery, third party delivery)
Delivery of deed and revocability
If grantor physically hands deed to grantee, title passes immediately to grantee and is not revocable.
- Doesn’t matter if grantor later asks grantee to destroy the deed.
- Or requests to delay the recording
- Handing deed back / tearing it up does not undo the conveyance of property through the deed
Consequences of defective deed to future BFP
Void/defective deed will be set aside even if transferred to a BFP.
- Void deed»_space; no BFP protection
Voidable deed will be set aside unless transferred to BFP.
- Voidable deed»_space; BFP protection
Estoppel by deed
AKA after-accquired title
If someone purports to convey an interest in real property that they don’t own at the time, but subsequently obtains title to the property, the property will automatically pass to the grantee once the grantor acquires title
Estoppel by deed only applies to transfer by warranty deed, not quitclaim deed
Ademption
When a testator devised property to a specific person in their will, but the property is no longer part of the estate at the time of testator’s death
Exoneration
When a person receives a bequest, and the property is subject to lien or mortgage, then the encumbrance will be paid off with estate’s personal property so that the recipient receives title free and clear of mortgage
Lapse & anti-lapse
Lapse occurs when the beneficiary named in a will ends up dying before the testator, and thus the bequest fails
Anti-lapse statutes allow the predeceased beneficiary’s heirs to receive the bequest
Wild deeds
Deed that is recorded outside the chain of title. Does NOT provide constructive notice because BFP wouldn’t be able to find it. .
Ex: Owner sells lot to Doctor. Doc does not record. Doc then sells to Surgeon and Surgeon records. Owner subsequently grants to Architect. Architect does not constructive notice
New owner’s responsibility over mortgaged property: “subject to” versus “assumed mortgage”
Sale (or gift) “subject to” the mortgage
- Buyer is NOT personally liable for paying mortgage.
- Buyer is NOT personally liable for any deficiency in the case of a foreclosure
Assumption of mortgage
- Buyer agrees to be personally liable to original mortgagor/mortgagee for repayment of loan.
- Includes any deficiency if there’s a foreclosure
- original mortgagor still “secondarily liable” to the lender as a surety, unless there’s a “release of liability” from the lender
Due on sale clause
This requires a property owner who transfers ownership of the property to pay the ENTIRE loan balance to mortgagee in full.
aka loan cannot be “assumed” to a new owner
due on sale clauses ARE reasonable and enforceable (if you see “unreasonable restraint on alienation” as an ac, that’s wrong)
Lien Theory vs Title Theory for mortgages
and what it means for possession before foreclosure
Lien Theory (maj rule)
- Mortgagee / lender holds security interest only. Thus, they may not take possession before foreclosure
Title Theory (minority rule)
- Mortgagee/lender MAY take possession before foreclosure because mortgagee actually holds title until the loan has been paid or foreclosed.
Intermediate Theory
- upon default, legal title shifts to mortgagee/lender who can demand possession
Equitable redemption
(and the right to redeem)
Meaning the mortgagor is allowed to pay off the entire mortgage before the foreclosure
This right to redeem cannot be waived. “Clogging the equity of redemption” is not allowed
Statutory redemption
Some states allow this, which gives mortgagor opportunity for a fixed period after foreclosure (usually 6 months to 1 year) to “redeem” and pay off the amount due on mortgage
Joint tenancy
definition, creation, key features
When 2 or more people hold a single, unified interest in a property
Features:
- automatic right to survivorship
- equal right to posses whole property
- each JT owns property in equal shares
- any JT can unilaterally sever
Judgment lien does not sever joint tenancy.
What happens to the lien interest when the tenant that has the lien dies?
When the JT that has the lien against the dies, their interest evaporates and the judgment lien holder no longer attaches the property
But if the judgment lien is enforced by foreclosure, then the JT will be severed. Then property will be owned half to the judicial sale buyer and half to the original JT, as tenants in common
Accounting between co-tenants
Co-tenants have duty to pay their proportionate share of “carrying costs” (e.g. taxes and mortgage payments. Also required to pay for necessary repairs
Co-tenants have NO duty to improve the property
Profits from rents and profits from land depletion must be shared
Easement in gross
Holder of easement in gross gets “special use” of the property granted to them. This right is independent of ownership of another piece of land (e.g. holder of this easement doesn’t have to be a neighbor)
Ex: A particular person has permission to fish in my pond; the utility company has
a right-of-way to install and service an underground gas pipeline
5 ways to create easement
- Express creation in writing (deed or will)
- Easement by implication (previous use)
- Land was originally one parcel
- Land is severed
- Easement is reasonably necessary to dominant land’s use and enjoyment
- Use of the property in this way existed prior to severance
(usually landlocked examples) - Easement by necessity
- Land was originally one parcel with common ownership
- Land is severed
- Easement is necessary bc there’s no other way to access property
- prior use is not required - Easement by prescription (adverse possession)
- Different from “adverse possession” because the use need not be exclusive! It’s fine that both the hunters and the man who had rerouted the path used the path on the neighbor’s land - Easement by estoppel
- Having relied on the promise of an easement / made improvements to it and thus contributed to increasing its value
Burden “runs with the land”
This means that the covenant is binding on future purchasers
Requirements:
- writing between original parties
- intent between the parties that the promise apply to successors
- must “touch and concern” the land»_space;> makes land more useful
- horizontal and vertical privity
- notice
Equitable servitude (restrictions on how land may be used)
Equitable servitude vs. restrictive covenant
Equitable servitude
- Like covenant, writing and notice required
- LIke covenant, binding on successors
- BUT NO privity requirement
Restrictive covenant breach = damages
Equitable servitude breach = injunction
When does someone have “heirs”
Only if they die intestate (without a will)
If they HAVE a will, then they don’t have heirs and the entire estate goes to the will beneficiary
The rule about using a state’s substantive law applies only for what kinds of property issues?
And when does it not apply?
Property is located in State A, so State A’s substantive laws will apply – this is used for property issues like whether a covenant is valid
But dispute about awarding buyer damages based on fraudulent conveyance is takes the substantive law of whichever state has the greatest interest in the dispute
Assignment of lease vs. sublease
Sublease – transfer of anything less than lessee’s entire interest to third party
Assignment – transfers lessee’s entire interest in the leased premise to a third party
(ex: transferred “lease rights” for the remaining nine months of the lease. 9 months is all that’s left so this is an assignment, not a sublease)
In the absence of agreement between landlord and tenant about removing chattel/fixtures, what happens?
Tenant CAN remove chattel that he attached to the space (e.g. special lighting, display cases, shelving, counters) as long as the removal does not substantially damage the premises
This removal must occur before end of lease term. T has duty to repair damages if any, from the removal of chattel
Landlord and Tenant and Sublesse
Privity
Sublessee and Tenant are in privity of estate with each other.
Only tenant remains in privity of estate with landlord.
There is no privity of contract between sublessee and landlord because sublessee made no promise, either to landlord or tenant to pay rent to landlord.
Although privity may not be required under an equitable servitude theory, a finding for the sublessee (not having to pay landlord) means court did not use such a theory
Owner of property getting an agent to convey property through deed
If owner orally hires and instructs agent to sign owner’s name, then deed is NOT valid. Because an agent signing a deed on behalf of principal must have his own authority to sign the deed in writing also.
Agent’s authority to act on behalf of the owner must be in writing.
License (in property law)
Permission to use someone else’s land
Not subject to SOF (which means oral license is fine)
Usually revocable at anytime (unless the licensee expended lots of money/resources substantially improving it)
Things that make title unmarketable:
- Defects in chain of title
- Encumbrances
Defects in chain of title
- Refers to any defect that indicates the vendor does not have full interest which he purports to convey
Encumbrances
- mortgages
- liens
- easements
- use restrictions
- encroachments
- land use and zoning violations
Merger Doctrine
Obligations imposed by contract of sale (marketable title) are discharged UNLESS repeated in the deed.
Ex: if buyer contracted for marketable title but accepts a quitclaim deed, buyer would not be able to sue on contractual provisions. Under merger doctrine, marketability of title and related covenant claims are replaced by only “future covenants of the warranty deed”
Aka real estate contracts are only relevant during the gap between signing and closing (aka delivery of the deed)
When a mortgage is entered into “jointly” by tenants in common
Each co-tenant would be jointly and severally liable for the mortgage.
One T can pay mortgage and compel the other T for contribution
The only way the sister could have protected her one-half interest (if she doesn’t want to pay bother’s half) is to have obtained a mortgage ONLY on her own interest
Seller has personal liability on a mortgage on land. Buyer “assumes the mortgage debt”
Buyer doesn’t make installment payments. To prevent default, seller pays. Can seller get reimbursement from buyer
Yes because law of suretyship
Seller is the “third party” that the bank could go after if buyer doesn’t pay. Thus, seller has the right to seek reimbursement if he pays for what the buyer is supposed to pay
When is the window for challenging marketability of title closed?
When the deed is delivered, then contractual obligations (marketable title is discharged)
Warranty Covenants
(what does it cover / not cover once deed have been delivered)
Protects against third party interference with use and possession of land and/or claims of superior title
Landlocked land, without access to public road, would have allowed buyer to challenge marketability of title, but must have been raised prior to transfer of deed.
Under merger doctrine, marketability of title and related covenants are replaced by only “future covenants of the warranty deed”
P’s awareness of the contact
not required in what kind of tort?
Battery
Ex: P does not like D. If D kisses P while P is sleeping, this is a battery even though P was unaware at the time since the contact is offensive to a reasonable person
After being fired, VP was given 10 minutes to leave the building otherwise guards would physically throw him out.
Assault?
Assault is the intentional causing of apprehension of imminent harmful or offensive contact
10 minutes = NOT imminent harm
Examples of extreme & outrageous conduct
- Man placed microphone in former wife’s bedroom
- Man killed neighbor’s cat in front of neighbor
- Bill collector shouted through bullhorn that plaintiff was “deadbeat”
- Bill collector threatens P that if no payment, bill collector will file complaint of fraud
- Developer threatens elderly landowner that if she doesn’t sell to developer, state law would allow him to have the home condemned
Wrongful birth/pregnancy/life
(definition and remedies)
Wrongful birth – baby born with congenital defects and pregnancy would’ve been terminated if properly diagnosed (remedy: extraordinary medical expenses and emotional distress)
Wrongful pregnancy – contraception failure (remedy: pregnancy-related expenses and pain and suffering, but NOT child-raising costs)
Wrongful life – not allowed. Brought by child to recover damages for having been born with defects
What kinds of defendants would tell you that Joint & Several Liability apply?
CONCURRENT tortfeasors
- where each defendant’s independent act would not have injured Plaintiff. But their combined action resulted in the harm
SUBSTANTIAL FACTOR causation
- where each defendant’s independent act alone was enough to injure the Plaintiff.
INDIVISIBLE HARM
- two negligent hunters fire guns simultaneously, but it’s unclear whose bullet caused the harm
Defamation vs. Libel vs. Slander
Defamatory Statement
- a false or derogatory statement of or concerning the plaintiff (must be a living person, or corporation)
- is published (repeaters of defamatory statement counts)
- to another person (one person is enough)
- and causes damage to P’s reputation
Libel
- communication in writing
- general damages presumed. P doesn’t need to prove special damages
Slander
- verbal defamation
- special damages required (P suffered some pecuniary loss)
Defamation involving a public figure
Public Figure
(1) P must prove the statement was false AND
(2) D acted with actual malice — aka knew it was false or acted with reckless disregard for the truth
Private Person but matter of Public Concern
(1) P must prove statement was false AND
(2) that D acted with at least negligence about the truth
Best defenses to torts
For Intentional Torts
- Consent / assumption of risk
(NOTE: P cannot assume the risk if they did not KNOW like actually been aware of the risk / have an alternative option)
Negligence
- Contributory negligence
- can also have assumption of risk (more rare)
Man who left his shotgun in the backseat of his car, whilst knowing that his friend recently joined a violent gang, will be FULLY indemnified for the judgment against him because the friend was an intentional tortfeasor
Because the friend was the intentional tortfeasor
Man had nothing to do with it / knew nothing about it
What are “substantive” issues pertinent to diversity cases (state substantive, federal procedural?
- statue of limitations
- measure and type of damages
- burden of proof
- elements of claim or defense
If D encroaches on neighbors land and then sells his property, can D still be sued for trespass?
Trespass liability is wrongful entry into another’s land, and liability attached AT the time of trespass.
Although new owner may still be liable, D is still responsible for CAUSING the invasion.
When a P is treated by medical team as a group and unconscious with anesthesia, what’s the tort issue?
Res Ipsa Loquitur
(1) the event that happened is one that does not usually occur absent negligent
(2) the harm was caused by something in D’s exclusive control
and (3) P was not the one who caused the event to occur
Why is it not negligence by “Ds acting in concert” –> there’s no evidence that two Ds caused the burn. Could have just been one person. So “acting in concert / common scheme” requires responsibility and fault of AT LEAST 2 people who engage in wrongdoing. Here, it’s possible just one person burned the patient
Public disclosure of private facts
D published private information about P
that would be highly offensive to the reasonable person
and is not newsworthy.
When we’re evaluating the elements of whether a D’s actions constitute BATTERY,
then we would NOT ever be talking about the reasonableness of smoker D’s conduct
Intentional torts ≠ Negligence
Is an auctioneer considered a “seller/distributor/supplier” for purposs of strict liability in tort
No bc auctioneer is not in the business of selling tractors.
And commercial sellers are strict liable if they’re engaged in the business of selling the product in normal course of business
A claim for NIED MUST be connected to a physical injury
Even if the dispatcher suffered severe emotional distress and was hospitalized at one point, the facts tell us there was “no physical injury”
And thus company’s motion for summary judgment should be granted bc negligent emotional distress must be connected to a physical injury
Land possessor’s duty to land entrants
Invitees
- Must inspect to discover UNKNOWN dangers,
- Make safe or warn guests about unknown dangers
- And prevent harm
Licensees
- Must warn of known latent defects and use reasonable care in active operations
- AKA no duty to warn of dangers licensees can discover / know already (grandpa with the toys)
Known or anticipated trespassers
- Warn of known artificial dangers and use reasonable care in active operations
Unknown or unanticipated trespassers
- No duty
Modern approach of land possessor’s duty to land entrants
Land possessor owes duty of reasonable care to all land entrants (except flagrant trespassers)
When is a defamatory statement to a third party privileged
When
D believes the statement/info is of interest to the third party (e.g. hiring)
Or when it’s not D voluntarily offering the information, but the third party specifically asking for it
But D will still be liable for defamation if this privilege is abused, AKA:
- When D knew the statement was FALSE or when D had substantial doubts to the accuracy
What kind of property interest must plaintiff hold to have standing to sue for trespass?
Possessory interest (aka the right to occupy or control the property)
So doesn’t have to be owner of the property, can even be tenant
Wrongful death (doctor’s malpractice)
Traditional vs. modern rule
Traditional –
Decedent probably would’ve survived but for the defendant’s malpractice (greater than 50%)
Modern –
Decedent’s chance of survival was reduced by defendant’s malpractice (45% chance reduced to 20%)
Negligent Infliction of Emotional Distress (NIED) liability arises when?
2 theories
Bystander theory
- Plaintiff is actually there to contemporaneously perceive harm done to a close relative
Zone-of-danger
- Plaintiff was placed at risk of immediate bodily injury AND the risk cause P serious emotional harm
- We want manifestation of physical systems of some sort? (manifestation of physical systems = later harm like headaches and panic attacks due to the stress)
P CAN recover for product liability when? and CANNOT recover when?
Damages resulting from personal injury or damage to the property other than the defective product itself.
Claim for purely economic loss is not allowed. (Software glitch that’s causes loss of profits, spoiled food due to defective frig and thousands of dollars in wasted inventory but no injury, or car transmission fails but does not cause accidents or injuries)
President’s exclusive Article II powers
- nominate principal officers
- veto bills
- pardon federal offenses
- communicate / negotiate foreign governments
- recognize foreign governments
- enter into executive agreements
When are passages/statements in a learned treatise or periodical admissible for truth (aka as substantive evidence)
(1) when publication is established as reasonably reliable authority by expert or judicial notice
(2) AND statements are called to the attention of or relied on by an expert witness
ANOTHER NOTE: these statements can ONLY be read into evidence, cannot be received as exhibit (same as recorded recollection— which cannot come in as an exhibit unless the opposing party so desires)
Features about attorney-client privilege
Remains in effect even after professional attorney-client relationship has ended, even after client had died
Physical evidence is not privileged. Only applies to communications
Exceptions:
- communications in furtherance of crime or fraud are not privileged
- danger that pose immediate risk of harm to third party
- attorney testimony is fine if there was previous joint representation and those clients are now in a lawsuit with each other
Evidence rules on police reports
Police report likely falls within business or public records hearsay exception
But doesn’t apply to eyewitness’s statements since eyewitness lacked a business or legal duty to report on the fight
Plaintiff offers to testify that the day before her husband was killed, he described to her a chance meeting with the defendant on the street in which the defendant said “I’m going to blow your head off one of these days”
Admissibility
D’s statement to Husband
- admissible through “statement by party opponent”
Husband’s statement to P
- NOT admissible bc it’s not a present sense impression and it’s not an excited utterance
Thus not admissible as double hearsay
Use of a writing to refresh a witness’s recollection does not implicate the best evidence rule why?
Because BER only applies when a party is trying to prove the contents of the writing
The best evidence rules allows the admission of a reliable duplicate (e.g. photocopy) without a showing that the original is unavailable. True or false??
True
Unless (1) a genuine question is raised about the original’s authenticity or (2) circumstances make it unfair to admit the duplicate
Speech restrictions in a public and designated public forum must be what?
(1) Content neutral
(2) Serve a substantial/important government interest
(3) Be narrowly tailored to serve that interest
(4) Leave open alternative channels of communication
Speech restrictions in nonpublic forums must what?
(1) Be viewpoint neutral (different from content neutral. Viewpoint neutral = you can’t take sides)
(2) Serve a legitimate government interest
(3) Be reasonably related to that interest
Landlord ~ tenant
Subleasee
Assignment
Privity of contract and estate
L and T have privity of contract AND privity of estate
A subleasee does not enter into either privity of contract or estate with landlord
But assignment would make new tenant in privity of contract and estate with L?
Best evidence rule only applies to what kind of evidence? When is it used?
- Only writings, photographs, and recordings
- NOT physical models
- not a “sales receipt” bc can be proved with testimony, transaction logs, security footage. Receipt is not actual legal contract.
Used when a document’s contents are at issue
- to prove the happening of an event (e.g. video of robbery)
- doc with legal effect (e.g. audiotape of contract, WILL has independent legal significance, LEASE is a legally operative document)
- witness is testifying based on facts learned from document (e.g. x-ray or audio recording) as opposed to personal first hand knowledge. In other words, document-dependent testimony, police officer testifying about victim’s diary where victim wrote about threats made against her: testimony is reliant on the writing and not personal knowledge.
President had absolutely plenary authority to remove officers. And requiring “good cause” would be an unconstitutional legislative interference with an executive function unless what?
The officer either
- belongs to a multi member body that’s balanced along partisan lines and exercises NO executive power (e.g. conducts investigations on behalf of congress)
- or lacks policy making/administrative authority (independent counsel)
A state tax that affects interstate commerce does not violate the DCC if it is what?
- applied to a person/activity that has a substantial nexus with the state (entities with poultry operations in the state)
- is fairly apportioned (applies only to birds raised or processed)
- non discriminatory (applies to all poultry operations in the state)
- and is fairly related to services or benefits provided by the state
Requirements of a valid deed delivered through a death escrow
- grantor must give deed to an escrow agent (attorney) with instructions to transfer it to the grantee upon grantor’s death
- AND relinquish the right to take back the deed
When does federal court have exclusive jurisdiction?
- bankruptcy (bc all governed by fed statutes)
- patent, copyright/trademark
- federal officers (position within federal agencies: FBI, US Marshal, Secret Service)
- securities cases
- antitrust
- maritime
- suits between states
Can interrogatories or depositions be sent before a pretrial conference (arranging for initial disclosures/preparing discovery plan)
No that is not proper
Because pretrial conference is required first. If the discovery is improper, D can refuse to answer them or seek a protective order
A party must object to the judge’s proposed jury instruction when, otherwise the ability to raise issue on appeal is waived?
Party must object to jury instructions before they go to the jury or they waive the ability to raise the issue on appeal
JMOL
Define it
Timing
Standard
Moving party contends that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue
Standard: evidence is viewed most favorably to the non-moving party
Timing: request motion for JMOL must occur BEFORE court submits case to jury, but after non-movant has been fully heard
Exceptions to the final judgment rule
Aka what can be appealed that is normally not appealable (before a final judgment is actually made)
- injunctions (like TROs becoming PI)
- interlocutory appeal
- collateral order
- certification of class actions
Claim Preclusion
(Res judicata)
Precludes relitigation of a claim that has already been decided
- There is a valid final judgment on the merits
- Same exact plaintiff and same defendant as before (or prices, like a trustee/successor/representative)
- The same claim and cause of action and transaction/occurrence is being litigation
EX:
- woman lost first claim of IIED. She cannot bring another action for NIED re the same transaction/occurrence
- D that lost first case cannot file a new lawsuit with a claim that he should have brought as compulsory counterclaim in the first case
Issue Preclusion
(Collateral estoppel)
- There was a final judgment on the merits
- Same issue was ACTUALLY litigated
- The issue was an essential part of the judgment
- Can only be used against someone who was a party (or in privity with a party) in the interest of fairness so they have opportunity to defend the action
EX:
- D manufacturer won in first case. D can use issue preclusion to prevent another P customer from another state suing
can assistant/colleague accept service of summons as an “authorized agent”?
What about 14-year old kid who lives at the house
Interpreted narrowly in that an assistant/colleague CANNOT accept service of process absent explicit permission
Kid who resides at home CAN accept
Service on a corporation, partnership, or association?
Service can be effected by following state law or delivering summons+complaint to officer or managing agent
MUST ALSO mail a copy to each defendant. Service by email is NOT allowed.
What are examples of state substantive law that has to be applied in diversity cases
- Statue of limitations
- Choice of law rules
- Notice of claims requirements
- Elements of a claim or defense
- Burden of proof
- Remittitur and additur
- Issue and claim preclusion rules
Conflicts on choice of law — what law will federal courts apply?
SMJ Federal Question
- federal law
Diversity Jurisdiction
- the choice of law rules of the STATE where the federal court sits
Transferred diversity case
- original venue is proper»_space;> court applies choice of law rules of original forum
- original venue not proper»_space;> court apples choice of law rules where the state sits
Amending to add a new party will relate back if what requirements are met?
- Concerns the same conduct, transaction, or occurrence as the original complaint
- New party had notice within 90 days of its filing
- New party also knew, or should have known, but for mistake, they would’ve been named as defendant in original complaint
Permissive vs Required Joinder
Permissive:
- plaintiffs or defendants can be joined if the claims arise from same transaction/occurrence
- if SMJ based on diversity, joinder cannot destroy diversity
Required necessary party if:
1. Court cannot provide complete relief without necessary party
2. Absent party’s interest will be harmed if they are not joined
3. Existing part would be subject to multiple inconsistent obligations
If credit union (junior lien with lower priority than PMM) was NOT a party to the foreclosure action vs. WAS a party to the action, what effect on buyer’s interest in the house
If credit union was a party, then the foreclosure sale buyer gets the house free and clear of the mortgage.
If credit union was not a party, buyer gets the house subject to the mortgage that the credit union has
What does it mean for a defendant to make a false statement about the plaintiff with actual malice?
(Defamation of public official/figure)
- knew that the statement was false or had reckless disregard about statement’s falsity
- also a statement would only tend to harm the plaintiffs reputation if a third party is reasonable interpretation of that statement would tend to do so
What requirements must be met for a defendant (ONLY D listed in Plaintiff’s complaint can remove. Not even someone who “joined” with D in counterclaim) to remove a case originally filed in state court to federal court?
(1) the federal court must have subject matter jurisdiction over the plaintiff claims otherwise the federal court can only retain the removable claims and not the non-removable ones
(2) all defendants consent to removal
(3) the defendant files a notice of removal within 30 days of receiving the plaintiffs initial complaint
(4) a copy of the notice of removal is delivered to the state court and the other parties
Only in a NOTICE recording jurisdiction, why will judgment creditors, not be protected, even if they record prior to a buyer?
Because a notice only act protects only subsequent purchasers for value who lack notice of prior interest in the land.
So because judgment creditors are not purchasers for value since the judgment lien is merely security for a pre-existing debt, they won’t be protected
Approaching questions on speech regulation and its constitutionality
- Is it protected? think FIDO
- fighting words
- obscenity
- illegal conduct (drugs, child pornography)
- commercial speech: protected so long as it concerns, lawful activity and it’s not false or misleading - If commercial, standard is:
- regulation directly advances a substantial government interest
- is not more extensive than necessary to serve that interest
- reasonably fit between means chosen and interest served - Content based (strict scrutiny)
- narrowly tailored to serve a compelling government interest) - Content neutral (intermediate scrutiny)
- narrowly tailored to serve an important government interest
- leaves open ample alternative channels
Character evidence is generally inadmissible when used to imply and prove that a person acted in conformity with his/her character.
Except admissible in what cases? As what kind of evidence?
Character evidence (reputation or opinion testimony OR SIC like prior theft) CAN be used as substantive evidence
When character is an essential element of a civil/criminal charge or asserted defense
Larceny
Trespassory taking and carrying away of personal property of another with the intent to permanently deprive
Larceny by trick
D obtains possession of the personal property another BY MEANS of a representation or promise that he knows is false at the time he takes possession
(Like tricking the other party by lying or by fraud in order to get possession)
But ONLY if you got possession of it BECAUSE if the lie
Embezzlement
D is lawfully in possession of the property but then commits fraudulent conversion
Ex: pawn shop owner who is supposed to hold a diamond ring for 60 days but ends up selling it 50 days later is guilty of embezzlement
False pretenses
(1) D knowingly misrepresents past or present material fact
(2) with the intent to defraud
(3) to obtain title to someone’s property/cash
Burglary
Breaking and entering into a building with the intent to commit felony
Solicitation
(Features)
- when one requests or encourages another to commit a crime
- no withdrawal: solicitation has been committed one the q is asked. Doesn’t matter that D changed their mind later
- solicitation mergers with the underlying crime
Conspiracy
(And acquittal for CL vs. MPC)
agreement between two or more persons who intend to commit
Wharton Rule (which follows CL)
If one D is acquitted, the other D cannot be convicted of conspriacy
But if one D’s charges are just dropped, the other D can still be convicted
Under MPC,
A person can be guilty of conspiracy even if their co-conspirators are acquitted or never prosecuted
Conspiracy
(Number of parties and overt act required for CL vs. MPC)
Common Law:
- requires bilateral agreement with two or more persons agreeing
- no overt act required
MPC:
- unilateral agreement allowed.
- In this case, a conspirator with undercover police officer CAN be charged and convicted
- overt act required
Diverting water from under neighbor’s ground
But no excavation of soil or dirt
Would NOT be liable for neighbor’s house sinking or cracking
Merger rule for inchoate crimes
Solicitation MERGES with the crime
Attempt MERGES with the crime
Conspiracy does NOT merge with the crime
Defendant attempts to poison her boss with a substance believed to be poison, but the substance is actually a laxative.
What kind of defense is this?
This is called factual impossibility bc the substance is actually not poisonous. So its not able to kill
Factual impossibility IS a defense for murder.
But NOT a defense for ATTEMPTED murder
Examples of probable cause vs no probable cause
Probable cause:
- person roaming around sketchily in an area that’s known for high crime and then throwing something in the bushes
- police informant or trustworthy insider call
No probable cause:
- anonymous call about someone at the house
Violation of miranda warnings vs police coercion and resulting admissibility
Violation of miranda warning (includes not providing counsel)
VOLUNTARY confession =
CAN still admissible for impeachment purpises
Involuntary confession = Police coercion
CANNOT be used either for case in chief or to impeach
What does jeopardy apply to and when does it attach?
Jury trial: attaches when jury is empaneled
Bench trial: attaches when first witness is sworn in
Does not apply to preliminary hearings or grand jury proceedings (because they don’t involve the actual trial or judge). In other words, jeopardy only applies when like the trail actually begins / race has started
Before officers interrogate a suspect in custody, officers must do what
Officers must administer Miranda warnings:
(1) right to remain silent
(2) anything said can and will be used against you in court
(3) right to an attorney
(4) if you can’t afford attorney, one will be provided
But does not need to tell suspect that theyre under arrest
Marital communications vs witness spouse privilege
Marital communications
- extends to ANY confidential statement made between spouses during marriage.
- This privilege survives divorce tho. So you can prevent spouse from testifying to communications made during marriage and during marriage ONLY (communications before / after marriage don’t count)
Witness spouse
- only criminal cases
- can testify to things that occurred even before marriage
- privilege to prevent testimony ends at divorce though
What will be waived (vs can be brought anytime) if not raised in first motion or first response by defendant?
Lack of PJ
Improper venue
Insufficient service of process
What’s not waived:
- subject matter jurisdiction
- failure to state a claim / join a necessary party
What does the UCC allow when accepted goods seemed conforming but only upon later discovery can you even find out about the non-conformance of issue with the good?
Buyer can revoke acceptance of a good whose non-conformity substantially impairs the good’s value to him
But must give notice within reasonable time
UCC Perfect Tender Rule
Goods that at the time of delivery don’t conform to contract may be wholly rejected, wholly accepted, or partially accepted
Seller also had right to cure the defect and is permitted a reasonable period of time to do so
What kinds of conduct = police should know are reasonably likely to elicit an incriminating response from suspect and therefore D’s statement should be suppressed?
- police coercion
- intimidation about what’s going to happen to those that D cares about
- going to the club that D regularly frequents and chatting them up
What’s fee simple determinable — and its affiliated future interest?
Durational
- so long as
- during
Future interest
- Grantor’s possibility of reverter
What’s fee simple subject to condition subsequent — and its affiliated future interest?
Conditional
- but if
- provided that
- unless
Future Interesf
- Grantor’s right of entry (but must be exercised and written in the doc “right to reclaim”)
What are the specific future interests that could be subject to RAP?
Contingent reminders
Vested remainders subject to open
Executory interests
Power of appointment
ROFRs
Options
When is a prior consistent statement of the defendant admissible ?
If D’s or witness’s credibility has been attacked, that’s the only time prior consistent statement can come in as nonhearsay
Warranty of merchantability vs
Warranty of fitness for particular purpose
Warranty of merchantability
- goods are fit for their ordinary purposes & conform to seller’s representations
Fitness for particular purpose
- seller has reason to know that buyer is relying on sellers skills to provide the goods
Exceptions to warrant requirement
- search incident to arrest
- administrative search of highly regulated industry
- stop and frisk
- automobile
- consent
- evanescent destruction of evidence,
- emergency situation where there’s threat of physical harm,
- hot pursuit of fleeing suspect
Includes special government purpose
- routine inventory search
- special needs (search of students/government employees)
- parolee
- border search
Congress’s taxing power
Direct tax (person or property)
- apportioned evenly among states AND reasonably related to revenue raising
Indirect tax (sales or excise)
- uniformly applied in every state AND reasonably related to revenue raising
Export tax
- always unconstitutional
The federal government, its agencies, and its instrumentalities are immune from direct taxation by the states unless Congress expressly consents.
Give examples of impermissible direct vs. permissible indirect
Impermissible direct tax:
- federal statute established a national lottery and created a new federal agency to administer it. Agency established outlets throughout the country. Some outlets are within a state that levies a general tax on gross receipts from all in-state gaming operations.
- state tax on rental receipts (payments to fed gov, who leases concession/land to private individual). Why? Bc it’s income that fed gov ultimately receives and a tax on that would be specifically taxing fed gov
Indirect tax that wouldn’t be counted as tax on federal gov:
- tax on constructor, whose cost is paid by fed gov
- state tax levied on private individual/entity’s USE and ENJOYMENT of federal property ( (kiosk operation in a federal park)
Congress commerce power
(1) instrumentalities of commerce
(2) channels of commerce
(3) activities that substantially affect interstate commerce
Cannot regulate local, non-economic activity
Dormant Commerce Clause standards
If law discriminates on its face in state vs out of state:
- state just show that regulation serves a compelling state interest and regulation is narrowly tailored to serve that interest
Not discriminatory but law burdens interstate commerce:
- court will apply a balancing test and law will be upheld unless the burden imposed on interstate commerce clearly outweighs local benefits
State CAN discrimination only non-economic
Is alienage a suspect class?
(But what’s the exception case)
Yes state/local laws on alienage are suspect, except alienage CAN be considered for state employment positions involving the self-government process (police officers, primary and secondary schoolteachers)
Privacy rights subject to strict scrutiny
- marriage
- use of contraceptives
- possession of obscene reading material at home
- right to live with extended family
- right to educate and raise children
- right to choose schooling for children
The 10th A prohibits federal government from requiring states to:
(1) enact state laws
OR (2) enforce federal laws
Misunderstanding can prevent contract formation but it is never grounds to what?
Mutual misunderstanding = contract was never formed.
Unilateral mistake = contract may follow the understanding of the party not at fault (only if other party had reason to know of the mistake)
Fraud/misrepresentation = voidable and rescission available
Misrepresentation includes non disclosure of a material fact if D had a duty to disclosure it
- when d actively misrepresents a material fact
- BUT ALSO includes non disclosure of a material fact if D had a duty to disclosure it
Under 10th A, Congress is prohibited from imposing federal taxes on states that
(1) discriminate against states bc taxes apply to states and their agencies but not individuals/entities or
(2) would unduly interfere with the states’ essential functions
— ex: tax on core state functions like issuing bonds
— ex: taxing revenue of state legislatures
Public employees only have a property interest in their employment if what?
Only if they can be fire only “for cause”
When employees “work at pleasure or mayor,” the employee has no property interest in their jobs
When can mayor / government official require members of her administration to be politically loyal (and therefore can fire the members if not)?
Only if the loyally is essential to the performance of the job
Chief of staff = can require political loyalty
Assistant sending out water bills = clerical, and doesn’t require political loyalty
Police who obtains entry to a home through deceit (e.g undercover cop lying after identity)
That’s okay. The police’s entry in that way would still constitute consent by the homeowner and be constitutional
Cumulative zoning
Permits higher use in lower use zones
(Allows homes to be in commercial/industrial use areas)
Compliance with governmental safety standards and “state of the art” product design
Does NOT bar plaintiffs recovery against the commercial seller as a matter of law
11th A gives states immunity from what?
- private party or foreign government suing state; or suing state official for violating state law
Exceptions:
- state consents to suit
- immunity removed by 13/14/15th amendment
- state official sued for injunctive/declaratory relief
- damages to be paid by state officer personally
- state official sued for prospective (not retroactive damages) to be paid by state treasury
- actions brought by US government or other state governments
- federally approved condemnation proceedings brought by private parties
- private parties against state pursuant to federal statute enacted pursuant to Congress’s war and defense powers
State regulation of interstate commerce prohibited unless (DCC)
Discriminatory law (passes strict scrutiny)
- narrowly tailored to meet important government interest, aka no alternatives
Nondiscriminatory Law (passes undue bruden test)
- Burden does not clearly exceed benefit
State Tax on interstate commerce
- substantial nexus
- fairly apprortioned
- nondiscriminatory
- fairly related to benefit
Other exceptions:
- congress approves the state regulation
- state is a market participant
- subsidiy
- the regulation is of a traditional government function
Doctrine of anticipatory repudiation as applied to leases
Maj rule:
Anticipatory repudiation does not apply to leases, thus landlord is not entitled to damages of rent for the months after (tenant refused to pay, landlord notice to vacate, and contract terminated)
Min rule:
Anticipatory repudiation applies to leases
Definition of malpractice
Professional (e.g. dentist, doctor, lawyer) deviated from the standard of care that reasonable professionals would have used under similar circumstances
Is title obtained by adverse possession marketable?
No unless it has been quieted (supported by judicial decree) bc there’s risk of litigation
Adverse possession vs easement by prescription
Easement by prescription:
- it’s like adverse possession BUT the use need not be exclusive of the owner or other users (owner’s tenants, the hunters, using the path as well is fine)
Exceptions to parole evidence rule
PER revolves around evidence to modify or contradict terms of an integrated writing
But the rule does NOT apply
- COLLATERAL agreement: when there’s a separate contract supported by separate consideration made at the same time
- when party is clarifying what a term of the contract means
- when party is attacking validity of agreement
- when there’s a trade of usage/industry custom that doesn’t expressly negate the terms (most additions wouldn’t expressly negate and would only supplement. This would be ok)
Venue is proper in any federal district where what?
- any D resides (so long as ALL Ds resides in same state)
- substantial portion of events occurred
- D is subject to PJ
Choice of law rules upon transferring venue
For diversity cases:
Venue was proper in original court—
Apply choice of law rules of original court
Venue was improper in original court—
Apply choice of law rules of receiving court
For federal cases:
Federal law applies regardless of venue
Strict products liability is imposed on commercial sellers without proof of fault/negligence — even if the seller did not create the defect. So long as defect existed at the time it left seller’s control
Even though manufacturer made windows in strict accordance with specifications provided by GC for the building and used reasonable care.
Doesn’t matter- still liable on strict products liability
Strict products liability claims can ONLY be brought against commercial suppliers or sellers
Who can strict products liability NOT be brought against?
Business providing services are NOT subject to strict products liability claims
- health clubs
- hair stylists
- doctors
Exculpatory agreements / waivers to absolve liability does NOT bar a valid strict products liability claims
It DOES bar a breach of contract (like manufacturer delivery claim: if the goods were destroyed on route to buyer)
Forgery
When someone makes (creates or alters) a false documents of apparent legal significance with the intent to defraud
Examples:
Bank checks
Letter of recommendation
Diploma
Historical docs
False introduction
Artwork
Financial statements
Article IV privileges and immunities clause
Prohibits states from discriminating against citizens of other states:
- travel/reside in state
- pursue employment
- own/transfer property
- seek medical services
- access state courts
- civil liberties
- creditors rights
- tax exemptions
D can remove a case to federal court if what?
(1) case falls within court’s original jurisdiction
(2) all other defendants consent to removal
(3) D files a notice of removal in federal court within 30 of receiving summons/complaint
(4) copy of notice is provided to state court and other parties
Home-court advantage (forum-defendant) rule
Prohibits removal when federal court’s original jurisdiction arises from diversity jurisdiction and a D is already a citizen of the state in which the case was filed
Admissibility of statement when Miranda warnings were not given
Miranda HAS to be given prior to interrogation. If given during interrogation and D is asked to repeat, D’s statement still won’t be admitted
False imprisonment
(1) D commits an act that was intended to confine P within a bounded area AND
(2) P was either aware of confinement or in minority jurisdictions, harmed by confinement
- immobilized car in shopping mall/by tow truck = NOT confinement bc the person is not confined. The person can up and leave and go home
Each real estate property is unique
Thus, even if there are comparable properties,
Specific performance is due every time!!
Novation
Subsequent contract that substitutes a new party for one of the original parties
Due process requires prosecution to prove every element of a criminal offense beyond a reasonable doubt
Would sentencing be an element of criminal offense?
If the sentencing is enhanced (e.g. sentencing factors that would increase the statutorily imposed sentencing range)
Bill of attainder
Prohibits legislative acts that inflict civil or criminal punishment against identified persons (or groups of persons) without a trial
Ex post facto laws
What’s the definition?
Prohibit enactment of retroactive criminal laws that
(1) criminalize previously legal conduct…. In other words, makes criminal an act that was not a crime when committed
(2) impose greater punishment than previously prescribed
(3) eliminate previously available defenses
(4) decrease prosecutions previous burden of proof
Public employment is a property interest when what requirements are met?
(5th A notice and meaningful opportunity to be heard before depriving life, liberty or property interest)
(1) employee has ongoing employment contract
(2) can only be fired for cause
(3) receives assurances of continued employment
Affirmative defenses (insanity, self defense) do not challenge elements of a crime.
These are just justifications for criminal conduct, so due process clause does not apply
DPC requires prosecution to prove every element of a criminal offense beyond a reasonable doubt
- DPC does NOT apply to affirmative defenses.
- State law can thus place ANY burden of proof to establish or negate an affirmative defenses
Undue influence vs duress
Undue influence
- parent’s succumbing was bc of unfair or excessive persuasion by someone who dominated or shared special relationship of trust with that person
Ex: Elderly in poor healthy,
Ex: unfairness in resulting bargain (sale of business for less than half FMV)
Duress
- threat. And there has to be no other option
Ex: crime or tort
School officials and whether they need warrant/probably cause to search a student on school grounds
School officials don’t need warrant/probably cause to search a student if:
(1) they have reasonable suspicion that student is violating law or school rules
(2) scope of search is reasonably related to the suspected offense and
(3) search is not excessively intrusive given student’s age, sex, nature
HOWEVER, if school official conducts search at direction of police, must be support by warrant based on probable cause or exception to warrant requirement
When is supplemental jurisdiction NOT permitted, in the context of original claim being based on diversity jurisdiction
(1) if the supplemental claim would contaminate diversity of citizenship between the opposing plaintiffs and defendants OR
(2) seeks $75k or less AND is made by a plaintiff
When can P amend its original pleading once as a matter of course?
Within 21 days after:
(1) serving the original pleading OR
(2) being served with motion to dismiss or responsive pleading (answer) — whichever comes first
Rule interpleader vs. Statutory interpleader
Interpleader – procedure used when multiple people claim an interest in the same property (e.g. wives claiming same life insurance proceeds)
Insurance company can avoid multiple liability by joining the claimants:
Rule interpleader — requires independent SMJ
(1) action must involve a federal question
OR (2) exceed 75k with complete diversity between stakeholder/insurance company and claimants
Statutory interpleader — (1) AIC of at least $500 and minimal diversity between claimants is enough
— nationwide service of process
Judicial notice can be taken at what stages? Even on appeal?
At any stage of the proceeding (even on appeal)
But in criminal case – jury cannot be instructed to accept a noticed fact as conclusive since this would impermissibly limit D’s right to a jury trial.
But in Bench Trials or Civil Jury Trials, noticed fact generally must be accepted as conclusive
Potential tortfeasors facing joint and several liability — would any one of them required party?
No
Construction company and real estate developer enter into contract. Neither knew that there’d be a massive layer of granite at 15 ft. Regulations require excavation to 25 ft. Constructor will continue if they get paid more $$. Who prevails if developer sues construction company for breach of contract?
Mutual mistake bc at the time contract was made, neither party knew about this granite.
However, court will decide that construction company assumed this risk because:
(1) there’s a foreseeable risk of encountering subsurface materials in excavation projects like this one AND
(2) construction company should have been aware of this risk and acted unreasonably by failing to hire a qualified expert to test for any subsurface complications
Statement that candidate for public office was using illegal drugs
Editor acted unreasonably in not investigating the accusation before publishing it. However, editor honestly believed accusation was true
Actual malice =
(1) actually KNEW the statement was false OR
(2) recklessly disregarded the falsity / recklessly failed to confirm truth
Here,
(1) Editor did NOT know statement was false
(2) AND did not recklessly disregard its truth. Editor ONLY acted unreasonably
Takings Clause
(5th A, but also applied to the states aka state governments through 14A)
PERMANENT taking of private property for public use
— Fed/state governments must pay just compensation when exercising eminent domain power. Public use is broadly defined as any use rationally related to legitimate public purpose
YES a taking:
— gov taking land to sell to private company to build luxury hotel is still “for public use”
NOT a taking:
— one year moratorium on developing land
Analysis on whether a government regulation constitutes a taking?
Physical –physical invasion on property
Regulatory
– deprivation of all economically beneficial uses
– Restricts use under totality of circumstances: look at (1) character of gov action, (2) economic impact, (3) reasonable investment-backed expectation
Exaction – condition to obtain permit can be a taking if it’s overly burdenson
Durational residency requirement
Woman who moved to the state 2 months ago was denied access to state funding for a surgery
This law will be reviewed under EPC since it treats 2 classes of people differently
Right to travel is a “fundamental privacy right” and will be treated with strict scrutiny!
Who can a constitutional challenge be brought by?
US citizen located anywhere in the world
OR foreign citizen located within US territories
No one else possesses rights under the Constitution
Media is shielded from liability for publishing information that is unlawfully obtained by a third party if what?
(1) if the information involves a matter of public concern AND
(2) the publisher neither obtained it unlawfully nor knows who did
Is there diversity in these cases?
State A v. Foreign Citizen
State A v. Foreign Citizen domiciled in State A
State A v. Foreign Citizen domiciled in State B
State A + Foreign Country 1 v. State B + Foreign Country 2
State A + Foreign Country 1 v. State B + Foreign Country 1
State A + Foreign Country 1 v. Foreign Country 1
Yes
No
Yes
Yes
Yes
No
What type of “mistake of fact” is a defense for SI vs GI crimes?
Specific Intent (FIAT)
- honest mistake, but doesn’t have to be reasonable
Ex: I honestly took someone else’s ring even though it looks nothing like mine. That’s still a defense to SI
General Intent & Actual Malice (Voluntary/involuntary manslaughter)
- honest mistake but has to be reasonable
Emily enters a fenced-off private property honestly believing she’s allowed to because it “looked public.” However, there were clear “No Trespassing signs” posted around.
Vs. Emily is hiking and crosses into a neighboring property, thinking she’s still within public boundaries. There were no signs or fences marking the property line.
(1) Emily’s honest but unreasonable mistake is NOT a defense to trespass (general intent crime)
(2) Emily’s honest AND reasonable mistake would be a defense to general intent crime (which requires a higher standard to the mistake than defense for specific intent)
Testimony to what a witness heard is generally inadmissible hearsay when what? And then admissible for what other purposes?
Generally inadmissible if offered for the truth of the matter asserted
But may be admissible to show that the statement was made (notice was given) or affected another (caused officer to believe that P was the robber)
Tenancy in common
Each co-tenant has a separate share of the property, but the right to possess and enjoy the entire property
(I.e. separate but undivided interests)
A co-tenant may bring an action to partition.
What kind of partition is preferred?
Partition in kind (physical division into lots that are proportionate to each co-tenant’s ownership interest) is PREFERRED
OVER
Partition by sale (forced sale where proceeds are divided in accordance with each co-tenant’s ownership interest)
Can government force a group to accept members who would significantly burden its views/mission?
(1) Private organizations are not state actors, so their acceptance policies need not comply with Constitution
BUT ALSO
If there’s a local ordinance that prohibits organizations from refusing certain members: that’s a violation of freedom of association
(2) Under 1st A freedom of association, government cannot force a group to accept members who would significant burden its views unless that interference is necessary to achieve a compelling government interest
Is legal impossibility a defense to attempt?
What about factual impossibility to attempt?
Yes it’s a defense to “ATTEMPT”
Because the intended act would not be criminal even if completed
Ex: arson is defined in jurisdiction as “intentional burning of any building or structure of another, without the consent of the owner”»_space;> owner tried burning. She’s not even guilty of attempted arson.
Factual impossibility is never a defense to attempt
Ex: wife thought she was using poison in her husband’s drink but it was actually just electrolyte powder
Mistake of law = ignorance of law (almost never a defense to criminal liability)
Spending clause gives Congress broad power to “appropriate/spend” money for the general welfare. But any conditions placed on receipt of appropriated funds must met what requirements?
(1) conditions must be clearly stated
(2) be reasonably related to the purpose of the expenditure
(3) not induce the recipient to do anything unconstitutional AND
(4) not unduly coercive
What are structural errors that would warrant an appellate court to automatically reverse a conviction/sentence?
- Biased judge
- Deprivation of right to counsel
- Attorney enters guilty plea over D’s objection
- Discriminatory selection of jurors
- Exclusion of D from courtroom during trial
- Denial of public trial / jury trial
- Improper jury instruction on burden of proof
What two requirements mean that the 6A right to an impartial jury are met?
(1) jury pool must be selected from a fair cross-section of the community AND
(2) the impaneled jury must be unbiased
Preemptory vs. For Cause
jury panel challenges
Peremptory
- Disqualifying potential juror for ANY reason except for discrimination based on race, ethnicity, or sex
For Cause
- Disqualifying potential juror due to juror not being able to be to fair or impartial (e.g. bias, prejudice, past experience)
How can a non-movant avoid SJ?
Non-movant can either:
(1) show specific disputed facts through affidavits, declarations, discovery or other materials containing admissible evidence OR
(2) request that court postpone consideration of the motion until additional discovery can take place
Note: non-movant CANNOT relay on pleadings because pleadings contain general allegations. Nonmovant must show specific disputed facts
In limited situations, a party to an illegal contract (breaking criminal OR civil law) can recover either expectation damages OR restitute damages
Expectation - if the party was justifiably ignorant of the illegality
Restitution - if the party was less culpable than the other party
Absent a statutory or contractual duty, a commercial landlord has no duty to make repairs unless what?
The repair
(1) is so substantial that it falls outside the tenant’s common-law duty to repair OR
(2) would primarily benefit the value of the landlord’s property
Article III gives SCOTUS original jurisdiction when?
Only 2 circumstances:
(1) when a case affects an ambassador, public minister, or consul AND
(2) when a state is a party to the suit
Exception to final judgment rule - district court certification
What must be met for this interlocutory appeal (exception to final judgment rule) to apply?
(1) that there’s a substantial difference of opinion on the controlling question of law AND
(2) an appeal may materially advance the ultimate termination of the litigation
Party seeking an appeal must then apply to appellate court within 10 DAYS after DC enters the order
Easement holder MAY increase the manner, frequency and intensity of easement’s use and easement will not be terminated unless what?
Unless the expanded use unreasonably damages or interferes with the use or enjoyment of the servient estate
Question has to TELL you that the servient estate is being burdened in some way. Just bc increased use and intensity doesn’t mean that the servient estate holder can self help
Self-defense for forcibly removing someone off property
Non-deadly self-defense is justified when one subjectively and reasonably believes it is necessary
(Roommate who didn’t know about the sublease and pushes the subleaser out is justified in their self-dense and will not be liable for injury)
No need to retreat but the force shouldn’t be excessive
What needs to be objected to at trial to get on the trial record otherwise will not be preserved
Appellate courts will not review errors that are not on the record of a trial court proceeding
- For hearsay issue to be preserved, the testimony has to be contemporaneously objected to
Civ Pro Timing:
Deadline for initial disclosures
Deadline for expert disclosure
Deadline for pretrial disclosure
Deadline to demand jury trial
Deadline to file notice of appeal
Motion to alter/amend final judgment
Deadline for initial disclosures = 14 days after initial planning conference
Deadline for expert disclosure (90 days before trial begins)
Deadline for pretrial disclosure (30 days before trial begins)
Deadline to demand jury trial (14 days after “last pleading” which could D’s amended answer, but usually shows up in P’s complaint or after D’s answer)
Deadline to file notice of appeal (within 30 days, file notice of appeal)
Motion to alter/amend final judgment (within 28 days after final judgment)
Doctrine of transferred intent applies to which torts?
Assault (intending to frighten the wife with dog meets assault. Then if leash breaks and dog bits woman - there’s transferred intent so the dog owner is liable for battery)
Battery
False imprisonment
Trespass to land or chattels
Protection against self-incrimination applies only to testimonial evidence
Displaying one’s arms to see if there’s evidence of heroin needle marks is non-testmonial and therefore not within the protection
When judgment is based on adequate and independent state grounds? (SCOTUS thereby cannot review final state-court judgment)
Adequate and Independent State Grounds =
(1) State law fully resolves the matter, so that federal law doesn’t impact the outcome of the case at all
(2) State court did not rely on federal law to reach its decision
Federal statute makes it so that any decision by a lower state court upholding state energy law may be appealed directly to SCOTUS (doesn’t have to go through the state’s higher level courts)
Is this okay/constitutional?
Yes, per article III
Under Article III, Congress has plenary power to establish and terminate lower federal courts and to remove the scope of their jurisdiction
Voluntary intoxication as a defense
Only for specific intent crime if it negates the requisite mental state like purposely/knowingly
But voluntary intoxication is NOT a defense to a general intent crime and will not negate recklessness, negligence or strict liability
Easement by Estoppel
Arises from good-faith, reasonable, detrimental reliance on servient-estate owner’s permission to make limited use of land
Can also be characterized as an irrevocable license
When considering an initial or renewed motion for JMOL, trial court must follow what requirements?
(1) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant
(2) disregard any evidence favorable to the movant that the jury is not required to believe AND
(3) not consider the credibility of witnesses or evaluate the weight of evidence.
JMOL jury trial/bench trial?
JMOL only appropriate in jury trial, NOT at bench trial, as it directs the jury to enter a verdict for a party based on evidence introduced at trial.
True that party may file a motion for JMOL at close of evidence to preserve rights to file renewed JMOL after verdict.
How are trial court’s discretionary rulings (e.g. injunctions, admissibility of evidence) reviewed?
How about trial court’s legal rulings (granting or denying JMOL)?
Discretionary rulings: abuse for discretion and given great deference
— admissibility of evidence
— injunction
— sentencing decision
— sanctions
Legal rulings: reviewed de novo and given no deference
— JMOL
— SJ
— jury instructions
— interpretation of statute
A plaintiff’s recovery for a strict products liability claim CAN be reduced in proportion to P’s contributory negligence
Elevator malfunctioned due to manufacturing defect. Worker was stuck, called for help, was in no danger, but after waiting 15 minutes for help, he became anxious and jumped 12 ft to get out and injured his back.
What will get de novo standard of review?
When appellate court is evaluating legal issues:
- Conclusions of law (jmol)
- Content of jury instructions
When will appellate standard of review be clear error?
Factual issues in BENCH trials
- Credibility of witnesses
- Factual determinations
Standard is: will only be reversed if NO reasonable judge would have made such a finding
When will appellate standard of review be abuse of discretion?
Discretionary rulings by judge:
- Grant/denial of new trial
- admissibility of evidence
- injunctions
Hearsay exception of former testimony allowed if what?
(1) D must be unavailable — like refuses to testify, cannot be found, etc
(2) testimony was given at a trial or hearing or deposition
(3) the party against whom testimony is offered HAD opportunity or similar motive to develop that testimony through cross
NOTE: GRAND JURY PROCEEDINGS will almost NEVER work for former testimony bc prosecution does NOT have the motive to develop the testimony since likely there’s plenty of evidence enough for indictment already
Examples of procedural & substantive issues (for diversity cases: state substantive/fed procedural)
Procedural:
- filing deadlines
- court rules
- discovery practices
- rules of evidence
- summary judgment
- jury size
- right to jury
- service of process
Substantive:
- elements of claim or defense
- measure of damages (and type: punitive)
- burden of proof (e.g negligence vs strict products liability)
- statute of limitations (2 vs 3 years)
What’s the standard for constitutionally regulating lawful and non-misleading commercial speech?
(1) must serve a substantial government interest
(2) must directly advance the substantial government interest AND
(3) must not be more extensive than necessary to serve that interest
Under UCC parole evidence rule, express terms of a completely integrated contract CANNOT be contradicted by evidence of inconsistent prior or contemporaneous agreements.
What’s the exception?
Evidence of trade usage CAN be admitted to explain or supplement contract terms so long as they’re reasonably consistent with contract’s express language. (Maj rule says that trade usage that delivered quantity within 5% is satisfactory IS REASONABLY CONSISTENT.)
Maj rule: basically trade usage is always going to be consistent with the language of the contract unless it COMPLETELY NEGATES specific express language
Liability for negligent misrepresentation (requirements in a commercial vs. non-commercial setting)
In a commercial setting:
D negligently provides P with false information, P relies on that information and suffers pecuniary (MONEY loss)
- Difference from normal setting: there MUST be monetary loss. If there’s only physical harm / emotional distress, D is not liable for negligent misrepresentation
Non-commercial setting:
Must have physical harm
Documentary evidence (docs like letters or checks) must be “authenticated” before it can be admitted
Authentication requires the proponent produce sufficient evidence to support a finding that the thing is what proponents claims it to be
Commonly authenticated by stipulation, eyewitness testimony, or handwriting verification.
Handwriting verification process = IS the authentication process.
Under the doctrine of promissory estoppel, a gift promise MAY be enforceable if what?
(1) the promisor should reasonably expect the promisee to rely on the promise
(2) the promisee relies on the promise to his/her detriment AND
(3) injustice can be avoided ONLY by enforcement of the promise
If after conveyance of the property, grantee discovers some problem with the property, what can grantee do?
Grantee does NOT have a valid breach of contract claim.
Grantee must rely on an action based on the deed to recover — whatever remedies are available under general warranty deed or under quitclaim deed etc.
Offers to plead guilty and withdrawn guilty pleas are inadmissible against a defendant in ____ (what kind of cases)?
Not admissible in a pending criminal litigation or in a subsequent civil case
Extrinsically: A witness’s credibility may be attacked by reputation/opinion evidence but NOT specific instances of conduct (with the exception of criminal convictions: dishonesty / felony)
Bad acts can only be brought in intrinsically during testimony (usually during cross)
Thereafter, credibility can be supported by reputation/opinion evidence but NOT specific instances of conduct
1st degree / 2nd degree murder distinction is only for MPC
Common law does not divide murder into different degrees. Instead, common law is about murder with malice aforethought.
Provocation or other minimizing factor would reduce an intentional killing to a voluntary manslaughter
What does it mean for a trial judge to “certify an interlocutory order (appealing a non-final / pre-trial decision) for appeal”?
This is when appeals for a non-final / pre-trial decision (like summary judgment) WOULD BE ALLOWED:
(1) order involves a controlling question of law
(2) there’s substantial ground for difference of opinion
(3) an immediate appeal may materially advance the case’s resolution
Default rule for missing place of delivery on UCC contract
Will be seller’s place of business unless otherwise agreed
(idea is that if contract is silent on delivery, buyer should pick up goods from the seller)
Relationships recognized as triggering duty of care to plaintiff?
- Employer/employee
- School/pupil
- Teacher/student
- Parent/child
- Jailer/prisoner
Although Congress has the power to pass laws to enforce the 14A, what must Congress show?
(1) that state governments have engaged in widespread violations of the amendment AND
(2) the legislative remedy is “congruent and proportional” to the violations
Telltale signs that the q is testing the evidence rule on offer to settle
There IS an active dispute when:
- lawsuit has been filed
- P has retained attorney
- D says he knows P has retained attorney
Thats when the “offer to pay medical expenses if you promise not to sue” is an offer to settle/compromise as opposed to promise to pay medical expenses
Privileges and Immunities of National Citizenship - apply to who?
Applies to citizens
Does NOT apply to corporations, noncitizens
Examples:
- Interstate travel
- Right to petition Congress for redress of grievances
Congress has plenary power when?
- Noncitizens (subject to DPC for a noncitizen domiciled within US)
- Naturalization
- Legislative power over District of Columbia
- Regulate federally owned lands and territories
- Foreign commerce (including power to impose tariffs)
- taxing and spending power
- organizing military and declaring war
- Indian affairs / governance of tribal lands
Regulation of expressive conduct (picketing, leafletting, armband) is upheld if what?
(1) Furthers an IMPORTANT government interest
(2) Regulation is unrelated to the suppression of ideas
(3) is NO GREATER than necessary, aka narrowly tailored
During a legal stop (doesn’t have to be an arrest), officer can ask driver and passengers to exit car even if there’s no reason to believe that passenger was criminal or dangerous.
Legal stop (reasonable suspicion)
— arrest
— traffic ticket/violation
— simply looking nervous is not enough
— matched description of suspect
— stuffing something under seat
What can officer do:
— Can seize drugs/contraband in plain view
— can conduct a frisk if there’s reasonable suspicion that driver/passenger is dangeorus
— drug sniffing dog outside of car
Officer walked into the stairwell leading to the front door of the apartment, and then saw that the curtains of the window were drawn except for a two inch opening. Renter was in there inhaling cocaine. Officer knocked on the door, announced presence, and immediately arrested rent.
Can evidence of cocaine be suppressed?
No plain view because officer peered into the window while on the stairwell leading to front door (curtilage is part of D’s privacy)
Plain view only applies
- when drugs are just like on the table in plain view
- or office can look into the residence while they’re standing in a place where there’s NO expectation of privacy (in the air / on the sidewalk)
Man who was stuck in the elevator for 15 minutes and was in no harm or rush to get anywhere, but decided to jump out»_space;> ended up seriously hurting himself vs.
Customer who was locked in the mall dressing room and insisted she absolutely had to be somewhere in an hour (had to pick up son from babysitter), took a dangerous route along drainpipe to get out»_space;> ended up injuring herself
In the first one, man assumed the risk of jumping out of the elevator while help was on the way. So D would not be liable for the injuries from jumping out
In the second one, the woman’s attempt to escape was “not voluntary” because she had a pressing need to be somewhere.
- D WOULD be liable for the woman’s injuries
- because she did not undertake the risk of falling voluntarily
Merchant makes a written, signed offer to sell goods and includes promise that the offer is irrevocable for 45 days.
Two weeks later, potential buyer tries negotiating for a better deal “If you cannot discount the price by at least 10%, I will not be able to make the purchase from you.”
Merchant actually sold the goods to someone else RIGHT before getting the note from potential buyer negotiating.
Before 45 days is up, potential buyer tries to buy. And then sues for breach of contract?
(1) Merchant’s “firm offer” is irrevocable for maximum of 3 months
(2) Merchant’s “firm offer” does NOT go away simply because the promisee tries negotiating (which would usually be seen as a counteroffer)
(3) Merchant breached when he sold to another people = meaning he did not keep his firm offer open
“Newsworthiness” is a defense to several forms of invasion of privacy torts, except for which one?
Intrusion into seclusion
— D intentionally invades P’s private space in a way that would be highly offensive and P has reasonable expectation of privacy
Celebrities can bring actions for “intrusion into seclusion” when they’re inside a private home, and therefore entitled to seclusion.
“To 1 for life, then to A, but if A has no children then to B”
What does A have?
A has a remainder subject to complete divestment (if the condition that eliminates its interest occurs)
A D’s murder trial, D calls first witness to testify that D has peaceful and truthful reputation. Prosecutor objects.
Why is peacefulness testimony allowed but not truthfulness?
D may only offer evidence of his/her truthful character if:
(1) D has TESTIFIED AND
(2) prosecution has impeached D or attacked D’s truthfulness
If a foreign corporation has subsidiary in any of the states, does that grant specific jurisdiction over the corporation?
No, location/HQ/activities of corporation’s subsidiaries have NO effect on its domicile
If a foreign corporation has subsidiary in any of the states, does that grant specific jurisdiction over the corporation?
No, location/HQ/activities of corporation’s subsidiaries have NO effect on its domicile
Specific jurisdiction vs.
General jurisdiction
Specific - when P’s claim arises from or is closely related to D’s minimum contacts with the forum state such that exercise of jurisdiction would not offend notions of fair play and justice
General - when D has continuous and systematic contacts and is domiciled in the forum state
Criminal defendants have right to effective assistance of counsel. D can have his/her conviction overturned by showing what?
Deficient Performance
(1) That attorney’s performance during trial fell below professional standards AND
Prejudice
(2) there’s a reasonable probability that, but for the deficiency, trial’s outcome would have been different/
Invasion of Privacy Torts:
— Intrusion upon seclusion
— Appropriation of name or likeness
— Public disclosure of private facts
— Publicity in false light
Intrusion upon seclusion
- Highly offensive & intentional intrusion on P’s solitude, seclusion, or private affairs
(Ex: phone tapping, photos of celebrity’s hair getting done inside locked salon, medical records disclosed)
Appropriation of name or likeness
- Using one’s name/likeness without their permission for financial benefit
Public disclosure of private facts
- Disclosure of private facts that are not of legitimate public concern
Publicity in false light
- Publicity given to false information about P, with actual malice
Negligent Infliction of Emotional Distress
(Special situations other than bystander / zone of danger)
P suffers serious emotional discussion because
- D negligently delivered wrong announcement of death or illness OR
- D mishandled a corpse or bodily remains OR
- D contaminated food with a repulsive foreign object
A party must take steps to preserve right to challenge a trial court’s ruling on appeal, through process called “preservation of error”
When party disagrees with a judge’s decision to exclude evidence, the party offering that evidence ordinarily must preserve error BY:
(1) obtaining a definitive ruling ont he issue AND
(2) make timely offer of proof: oral or written explanation of relevance and admissibility of the excluded evidence
- made ON THE RECORD
- OUTSIDE jury’s presence
How issue preclusion / claim preclusion applies to new parties?
Issue Preclusion
- Usually means only someone who was a party in first case (or in privity) can invoke this
- BUT IF the state permits “nonmutual issue preclusion”»_space;> then non-party can assert issue preclusion
Claim Preclusion
- New defendants are really the ones who bring claim preclusion (they want to say that P’s claim in the second case is precluded) because P already had their chance to bring all related claims in the first suit
- Ex: P sues store for defective product but loses. P later sues manufacturer over the same defective product, then mfg can assert claim preclusion
How is modifying UCC different from service/property contract?
No need consideration required to support a modification under UCC
In an installment contract, if seller has permitted buyer to make late payments, seller may be deemed to have waived the right to timely payment.
How to regain right of timely payment?
Seed must inform the buyer in writing of the timeliness requirement
Timing to file a notice of appeal
Generally, 30 days after final judgment entered
But if there are post-trial motions, the post-trial motion deadline is 28 days after final judgment. And then notice of appeal must be by 30 days after ORDER disposing of the post-trial motion deadline
Notice of appeal must be filed with DISTRICT COURT! Not appellate court
President has exclusive power to nominate high-level executive officials: such as cabinet members, ambassadors, and heads of agencies.(with Senate approval)
What about removal power?
President may remove any executive appointee without cause and without need for Congressional approval
Party can attack the other party’s witness credibility through what and not through what?
Reputation and opinion testimony
Felony conviction
Crime of dishonesty
Sensory competence
Bias
NOT specific instances of conduct (e.g. once cheated in community raffle)
Article 1, Section 6 speech and debate clause (including any speech made on House/Senate floor regardless of whether speech relates to pending legislative business)
Senator/Rep has full civil and criminal immunity for official legislative activities
UCC Contract between Merchants
(Battle of the forms)
Tells you that acceptance is effective even if the acceptance included additional terms UNLESS:
(1) offer explicitly required offeror’s acceptance to new terms
(2) offeror rejects it after a reasonable period of time
(3) new terms substantially alter the contract
Doctrine of Frustration of Purpose
(1) Applies when an unexpected event arises that destroys one party’s purpose in entering into the contract
(2) even if performance of the contract is not rendered impossible
(3) event that arises must not be the fault of the frustrated party
(4) nonoccurrence of this even must have been a basic assumption of the contract
Prior Restraint Rule
(Prevents speech from being heard before it even occurs)
Only allowed where the government can show:
— irreparable / serious harm to the public will occur
— narrowly drawn standards AND
— a final determination of the validity of the restraint
When does land owner/life tenant’s actions constitute “waste”?
An owner commits waste if he makes physical changes to the property securing the mortgage that result in reduction in property’s value.
— Here, copper mine already existed. Miner made no physical changes but rather excavated the already-existing copper mine so that does not constitute waste.
Trial courts have power to sanction under Rule 11 on their own initiative, BUT they must first enter an order to show cause because that ensures attorney has opportunity to be heard.
The 21-day “safe harbor” provision applies only to motions made by a party.
Under the Pinkerton doctrine, each conspirator is liable for the crimes of all other co-conspirators if what requirements are met?
(1) If the crimes were a foreseeable outgrowth of the conspiracy and
(2) in furtherance of the conspiratorial goal
Under the Pinkerton doctrine, each conspirator is liable for the crimes of all other co-conspirators if what requirements are met?
(1) If the crimes were a foreseeable outgrowth of the conspiracy and
(2) in furtherance of the conspiratorial goal
Embezzlement vs Larceny of a “found” item
Embezzlement
— when finder picks up property innocently, intending to return it, and only later forms intent to permanently deprive.
— the innocent finder was initially in “lawful possession of it”
Larceny
— finder has immediate intent to steal/keep the item = trespassory taking.
— finder was NEVER in lawful possession of it because the “found” item HAS an owner and the finder was never innocently going to give it to the rightful owner.
How is AIC (which must be greater than $75k in diversity cases) measured?
Good-faith estimate
CAN include:
— punitive damages
— attorney’s fees (if recoverable by contract/statute)
NO include:
— interests / expenses
Supplemental jurisdiction when original jurisdiction is federal question vs. diversity
Federal Question cases
— court has discretion to hear state law claims if they share CNOF
Diversity cases
— court can hear compulsory counterclaims (CNOF)
— can only hear permission counterclaims if these individually meet diversity requirements
— cross-claims yes if CNOF
— joinder of parties cannot destroy complete diversity
Taxpayer standing to bring federal court claim
Cannot challenge government expenditures generally
The only time taxpayer has standing:
(1) lawsuit challenges a specific legislative enactment
(2) AND the spending allegedly violations establishment clause (I.e. gov is using tax dollars to support religion)
When is third party standing allowed in federal court claim?
(1) members themselves have standing
(2) the lawsuit aligns with the organization’s purpose
(3) AND individual member participation is unnecessary
Where is there a citizen vs. corporation application difference?
5th A Privilege against Self-Incrimination
— privilege for individuals and sole proprietorships
— NOT for corporations
Tort of appropriation of name and likeness only for humans
Article IV Privileges and Immunities
Discriminating against non-citizens re “fundamental”/essential activities under Privileges and Immunities Clause?
Rights that are fundamental to national unity include:
— pursuit of livelihood/private employment (e.g. commercial license fee, residency requirement)
— owning property
— access to courts
Not protected:
— recreational activities (fee for hunting license)
Gov official told butler that butler would receive 25% of future earnings from sale of officials’ life story. Executor refused to give 1/4 of earnings
Future right in a contract that does not exist at the time may not be assigned
Like any promise to make a gift, a purported assignment that is made gratuitously is not enforceable against assignor
A class action notice must include the following information and advise the for “class member” about what?
— that the court will exclude any member of the class who requests exclusion
— the the judgement, whether favorable or not, will be binding on all class members who do not request exclusion
— and any member who does not seek exclusion may enter an appearance
When “time is of the essence” is in a land-sale contract, it’s not just about closing date when purchase price is due. If the parties agree for buyer to make 1/2 half payment at a certain date before closing, even that will be strictly held to “time is of the essence”
Even if buyer makes the half payment a little late, the seller accepts it, and the buyer pays the remaining half of the purchase price on agreed-upon closing date,
— seller could still take the delayed first payment as minor breach and obtain damages
Fifth Amendment privilege against self-incrimination applies ONLY to evidence that is testimonial in nature.
Non-Testimonial
— woman cannot prevent introduction of friend’s testimony as to woman’s statement “Yes I shot my husband’s ex-girlfriend with my shotgun, but I’d just call that immigration control”
Quasi Contract (aka implied-in-law)
Vs. Implied-in-fact
Quasi contract (implied-in-law) is not a real contract, but a legal remedy
— doctor that heroically attempts to rescue the drowned storeowner. Even though the guy died, doctor rendered emergency services that “conferred a benefit” by enhancing the chance of survival, so doctor would recover
Implied-in-fact contract
— an actual contract that doesn’t meet the usual contractual oral or written validity requirements, but shows, through conduct, that promisor and promisee agreed to be bound
Tort of appropriation of likeness has not been extended to animals, corporations, or other non-human plaintiffs
Owners of Harvey the Rabbit cannot recover damages from boarding kennel that used Harvey’s likeness in promoting opening of new facility
Parol evidence rule does not bar the introduction of evidence that a condition precedent failed, where both parties’ obligations would be discharged by the failure of that condition.
Parol evidence rule DOES allow introduction of evidence of a subsequent agreement between parties.
UCC firm offer rule
(Just the party making the offer has to be a merchant… not that both parties need to be merchants)
“merchant” here means any type of businessperson involved in any commercial nature
merchant’s firm offer is irrevocable and CANNOT be subsequently modified for time stated (cannot be over 3 months)
Exclusions from accomplice liability
— member of protected class
— exempted necessary party
— withdrawal
Member of protected class
— criminal statute designed to protect member (e.g. statutory rape: victim would not be an accomplice)
Exempted necessary party
— the crime requires multiple participants, but criminal statute only imposes liability on one bc the others are immune from liability (e.g. sale of narcotics where drug dealer was undercover police)
Withdrawal
— accomplice repudiates encouragement early enough
— undoes or neutralizes their assistance
— notifies authorities early enough to prevent crime
Commerce clause gives Congress power to regulate interstate commerce, but this power comes BENEATH Tenth Amendment constitutional provision that prohibits Congress form commandeering state or local legislatures.
Congress has NO authority to require states to enact any specified legislation (or to enforce federal law)
“Here, federal statute requires states legislatures to criminalize the sale, near a school, of any controlled substance that had previously been transported in interstate commerce.” Congress can regulate this conduct but can do it themselves, cannot require states to do so.
Default judgment
Judgment on the pleadings
Summary judgment
Default
— D failed to timely serve answer
— party who failed to comply with court order
Judgment on pleadings
— Pleadings, attached exhibits show (1) no genuine dispute of material fact AND (2) movant entitled to judgment as a matter of law
Summary Judgment
— pleadings, affidavits, declarations, discovery and other materials show
(1) no genuine dispute of material fact and
(2) movant is entitled to judgment as a matter of law
Mistake/ignorance of the law is no defense usually
Exception in what limited circumstances?
— D reasonably relied on the law (statute, court decision, or official interpretation) which is later invalidated
— law is not reasonably available to defendant
— knowledge of law is element of crime (e.g. sale of gun to a known felon)
Doctrine of forum non conveniens allows a federal court to dismiss or stay a case if a state or foreign judicial system, NOT another federal court is better suited to hear the dispute.
So not really applicable to the typical suit between citizens of different states
Seller’s duty to disclose
— caveat emptor (minority rule)
— modern rule
Modern:
— sellers must disclose material defects that they KNOW about and that cannot be reasonably discovered
(Here, woman never visited the house so she didn’t know about termite damage)
(Here, disclosing to broker is not enough, but the “as is” in the contract controls)
Sellers can DISCLAIM duty to disclose:
(1) if disclaimer is clearly and specifically stated in contract (“as-is” condition)
(2) and seller has not fraudulently misrepresented
Collateral-order doctrine as an exception to the final judgment rule
Allows interlocutory appeal when:
— district court order conclusively resolves an important issue
— issue is separate from the merits of the underlying claim AND
— order is effectively unreviewable on appeal from final judgment
Examples:
— denying state 11th amendment immunity
— denying government official/employee immunity
— vacating attachment of vessel
— refusing to require security bond pursuant to state law
— remanding action to state court based on abstention
Collateral-order doctrine as an exception to the final judgment rule
Allows interlocutory appeal when:
— district court order conclusively resolves an important issue
— issue is separate from the merits of the underlying claim AND
— order is effectively unreviewable on appeal from final judgment
Examples:
— denying state 11th amendment immunity
— denying government official/employee immunity
— vacating attachment of vessel
— refusing to require security bond pursuant to state law
— remanding action to state court based on abstention
Fifth Amendment double jeopardy clause prohibits multiple punishments or a second prosecution for the same offense (aka when crimes have identical elements).
But a second prosecution would be permitted if what is met?
— D is convicted of lesser offense in first trial
— second trial involves greater offense (more serious crime)
— the facts necessary to establish the greater offense did not exist at the time of first trial
Voluntary vs involuntary manslaughter
Voluntary Manslaughter
— Intentional killing resulting from: adequate provocation heat of passion OR other mitigating factor like imperfect self-defense
Involuntary Manslaughter
— Unintentional killing resulting from: criminal negligence (or recklessness under MPC) or commission of unlawful act (misdemeanor manslaughter)
Fifth Amendment privilege against self-incrimination applies to BOTH civil and criminal cases?
Yes, witness in civil case can assert the privilege by:
— refusing to answer question
— due to reasonable belief that answer is incriminating
How is privilege against self-incrimination waived?
For criminal D
— privilege is waived by testifying as to his/her culpability
Witness
— does NOT waive privilege by voluntarily testifying
— but if witness voluntarily testifies about a potentially incriminating matter, then it’s waived and opposing party may examine witness on that matter.
Slander per se
No special damages required if P is accused of
— commiting a crime
— conduct disparaging P’s fitness for business/trade/profession
— has a loathsome disease
— sexual misconduct
In most jurisdictions, joint tenancy will be severed even before legal title is officially conveyed.
A and B own house as joint tenants. A signed contract conveying interest to personal trainer. Before legal title is transferred, A dies and A’s sister is to inherit estate.
What result?
B + personal trainer + A’s sister own as tenants in common
Non-use (long period of time) of an easement alone does not terminate the easement
What’s required?
Termination of easement through abandonment requires proof of intent to abandon and some affirmative action showing the intent to abandon
Is D liable for appropriation of P’s name and likeness if D just economically benefits from it? What else is needed?
The wrongful use of P’s identity or likeness MUST be in connection with promotion of product or service. (E.g. using actor’s image to market her own brand)
The fact that D derived economic benefit alone does not constitute a violation. (E.g. selling picture to tabloid)
Intentional Misrepresentation
Plaintiff must show that:
— D knowingly or recklessly misrepresented a material fact with the intent to induce P’s reliance AND
— P reasonably relied o the misrepresentation AND
— P suffered pecuniary loss!
Appurtenant vs. in gross easement
(Appurtenant > Easement by Implication)
Appurtenant — easement that allows easement holder to use or control servient estate
Ex: right of way to provide access to dominant estate
In-Gross — easement that benefits easement holder personally. Burden transfers, but NOT benefit when land is conveyed
Remittitur vs. Additur
Remittitur
— D’s request to reduce jury award of excessive damages
— Court will grant this motion when evidence presented at trial is insufficient to support amount awarded by jury
— P then gets choice between (1) reduction of damages or (2) new trial on damages
Additur
— NEVER allowed in federal court
Authentication
— ancient documents (20+ years old, no suspicion about authencity, and was located where you’d expect)
— public records (filed in public office)
— REPLY LETTER (doc written in response to communication and makes it unlikely that it was written by someone other than recipient of first communication)
— handwriting (comparison by tier of fact, or witness with personal knowledge not acquired for litigation)
— self-authenticating doc
Consequential damages
Damages for losses stemming from the nonbreaching party’s special circumstances IF breaching party:
— knew about the special circumstances
— or could have reasonably foreseen harm caused by breach
Collection of $2k was barred by SOL. Debtor then sold his car to a buyer under a written agreement in which buyer promised to pay $2k purchase price to creditor “in satisfaction of the debtor’s debt to creditor”
Can creditor recover $2k from buyer?
Yes because the buyer’s promise to pay $2k to the creditor is enforceable as creditor is intended beneficiary. This is true regardless of whether debtor was legally obligated to pay creditor anything.
Creditor can recover $2k from buyer NOT because buyer’s promise to pay $2k REVIVED the uncollectible debt. That’s not how uncollectible debt works.
YES state gets immunity from being sued in federal court
— suit against state by private party or foreign government
— suit against state official for violating state law
— against state official for retroactive damages to be paid by state treasury
NO Immunity for states
— against state official for injunctive/declaratory relief
— damages to be paid by state officer personally (not state treasury)
— state official sued for PROSPECTIVE damages to be paid by state treasury
— state consents to suit
— immunity removed by 13/14/15A
— suit brought by US gov / by another state
— suits against local county/municipal governments
— bankruptcy proceedings
— eminent domain proceedings
Accord/Satisfaction (as opposed to Novation)
Novation — new contract that SUBSTITUTES previous party for new party
Accord
— tender and acceptance of alternate performance discharged original contractual obligation
Business records hearsay exception
Admissible if:
(1) made at or near time that event occurred
(2) record made by someone with personal knowledge of what was happening
(3) made and kept as a regular practice in course of business activities
State laws that discriminate based on citizenship are generally subject to strict scrutiny. But under the political-function exception?
Rational basis scrutiny applies when such laws restrict a noncitizen’s participation in government functinos allowing
(1) direct formulation, execution, or review of public policy OR
(2) exercise of broad discretion: serving on jury, schoolteacher, police officer, voting, public school teacher
When should appellate court automatically reverse a defendant’s conviction?
If trial court committed a structural error:
- biased judge
- deprivation of right to counsel
- attorney enters guilty plea over D’s objection
- discriminatory selection of jurors
- exclusion of D from courtroom during trial
- denial of public trial and/or jury trial
- improper jury instruction on burden of proof
Can a non-party to an action be compelled to answer interrogatories?
No, non-party cannot be compelled to answer interrogatory.
But their testimony can be obtained through use of subpoena for a deposition.
Hearsay evidence is admissible in sentencing hearings.
What else important to know about sentencing / aggravating factors?
Any aggravating factor that raises the presumptive imprisonment term must be proven beyond a reasonable doubt to a jury.
Aggravating factors must be proven to a jury, and not a judge.
A life tenant does have a duty to not impair the value of the estate. However, life tenant is not responsible for damage caused by others to the land.
Not a duty on life tenant:
- insure the estate
- prevent acts of others damaging it
Yes a duty on life tenant:
- don’t commit waste
- pay interest on mortgage
A promise of a gift is unenforceable under contract law. BUT always think about promissory estoppel — because a party may still recover under equitable theory of relief.
(1) promisor reasonably expected to induce promisee to rely on the promise
(2) promisee DID in fact reasonably rely on the promise
(2) promisee’s reliance caused substantial detriment AND
(3) injustice can only be prevented by allowing recovery
Jury trial cannot be withdrawn, unless both P and D agree. One party cannot unilaterally withdraw the jury trial demand.
What other features about jury trial?
Jury must consist of at least 6, but no more than 12 members. And reach a unanimous verdict.
If no unanimous verdict, then court should grant distributor’s motion for new trial.
Evidence of witness’s religious beliefs admissibility?
Inadmissible to attack witness’s character for truthfulness
But admissible to prove witness’s bias or self-interest
It’s not that discharge of a contractual obligation must be in writing.
Any modification (even discharge of previous obligation) requires consideration.
A government seizure of property for criminal investigation or forfeiture action is NOT a 5th A taking
Congress cannot touch SC’s original jurisdiction
But Congress can both expand and/or limit SC’s appellate jurisdiction
Congress can both expand and/or limit federal court’s original or appellate jurisdiction
Congress cannot touch SC’s original jurisdiction
— ex: congress cannot say that these cases ordinarily in SC’s original jurisdiction “must first be heard in federal district court.” Not allowed; these MUST go directly to SCOTUS
Congress can both expand / limit SC’s appellate jurisdiction
— limit example: congress can remove certain types of appeals, meaning that lower court’s decision would be final/it ends at federal circuit court
— expand example: congress can create mandatory SC review, meaning SC must hear them even without certiorari
Congress can both expand / limit federal court’s original and appellate jursidiction
— congress can create or abolish lower federal courts entirely
— expand their original jurisdiction (by adding more categories like patent law/immigration)
— restrict their jurisdiction
Torts that require pecuniary loss
- intentional misrepresentation
- slander
Customer respond to restaurant supplier “I accept your offer on the condition that you provide me with a warranty that the freezer is merchantable.”
Under UCC, warranty of merchantability is ALREADY implied in the sale / warranty is implied in all contracts for sale of goods by a merchant
So this statement is an acceptance — condition is already a given so it’s not considered additional term
Merchant’s firm offer rule
ONLY applies when merchant makes an offer in WRITING and signed
- only seller has to be merchant, not the buyer
- seller must promise to keep offer open for a certain period of time
When you have a discriminatory law challenged under EPC
Usually just rational basis scrutiny: rationally related to a legitimate government purpose
Heightened scrutiny applies when:
(1) the law impacts a fundamental right
(2) INTENTIONALLY discriminates against a suspect class
(3) intentionally discriminates against a quasi-suspect class
Contract clause prohibits state laws from substantially impair existing contracts (both public and private contracts)
State law would be invalid unless impairment is narrowly tailored to achieve significant public purpose
Contract entered into while intoxicated is voidable by intoxicated party only when what requirements are met?
(1) party was TOO intoxicated to reasonably understand the nature or consequences of the contract AND
(2) the other party had reason to know about the intoxication
- diff from MC about drunk promisor joking about selling his land/car. The promisee had no idea that the promisor was just joking. Objective manifestation of offer and acceptance where there so contract was formed.
Specificity of pleadings
General complaint: short & plain statement showing P is entitled to relief
Fraud/mistake/mental condition
- malice, intent, knowledge, or other mental condition may be alleged generally
- but circumstances giving rise to fraud/mistake must be stated with particularity
Damages
- special damages must be specifically stated
Court can poll the jurors individually after a verdict is returned, and if it’s not unanimous what can court do?
Order a new trial OR direct jury to deliberate further
Accomplice
(1) intentionally aids OR encourages the principal before or during a crime
(2) with the specific intent that the crime be completed
Mortgages and how they affect joint tenancy
Lien theory jurisdiction (majority)— joint tenancy remains in tact bc mortgagor just has a lien interest
Title theory jurisdiction— joint tenancy is severed to tenants in common
Dismissals for failure to prosecute are with prejudice, so new attorney would not be able to help the case just by refiling the suit.
Prior judgment would need to be vacated before the suit could be refiled
Rape shield law
Evidence of rape victim’s prior sexual conduct is generally inadmissible.
Except admissible if: to prove that person other than the accused is the source of semen, victim’s injury, or other physical evidence.
Assault
(Remember: mere surprise or unintentional startling does not equal assault). Think about Defendant’s actions/motive
Attempted battery assault: D attempts to make harmful or offensive contact but fails
Fear of imminent harm assault: D causes or intends to cause victim reasonable fear of imminent harmful or offensive contact.
Larceny merges into robbery when property is taken from the victim’s person or presence by
(1) more force than necessary to acquire OR retain property
— “grabbed purse off her seat and then pushed the woman out of the way and ran out of the subway” (that’s robbery bc used forced in leaving with the purse
or (2) intimidation/threat
Examples of non-testimonial statements
Physical evidence or conduct
- needle marks on arm
- fingerprints
- DNA samples
- handwriting samples
- blood tests
- line ups
Casual comments
- statements made in emergency situations
- business records not created for prosecution
- statements made spontaneously to friends
Psychotherapist-patient privilege
Protects confidential communications between patient and therapist/social worker made during treatment or diagnosis
Exceptions when protection does not apply
— communication resulted from a court-ordered examn
— case is commitment proceeding against the patient
— patient’s mental condition is at issue
Once an expert witness is qualified, witness may testify on a disputed issue if that testimony is what?
Relevant
— testimony will help the trier of fact understand the evidence/assess a fact in issue
Reliable
— testimony is based on sufficient facts or data and product of reliable principles and methods
A joint tenant CAN sever joint tenancy by conveying his/her interest to another only DURING lifetime
Joint tenant CANNOT devise interest through will. If so, at the joint tenant’s death, the other joint tenant acquires the whole property through right of survivorship
A promise to make a gift at some time in the future is only legally enforceable IF all the elements of promissory estoppel are satisfied.
Essentially if the promisee relied on the promise.
When is detrimental reliance not needed:
— gift to charitable institution
— gift made in anticipation of a marriage
When does statute of frauds apply?
Sale of goods for $500 or more (note: not service, but sale of goods)
Marriage contracts like prenuptial agreements
Contracts that cannot be completed in a year
Land sales
Executor
Suretyship
Life estate transferability
Reverter interest transferrability
Life estate
- can be transferred during life
- but life estate expires at the death of the holder, and cannot be devised by will
Reversionary interest
- can be transferred. NOT subject to RAP.
Part performance exception to Statute of Frauds
Mom and daughter jointly orally agreed to buying the stereo that was $800. This contract was in violation of statute of frauds.
But why would mom still be liable o the storeowner? Because part performance: the stereo was delivered and the daughter accepted it. Mom and daughter would be jointly liable.
Receiving stolen goods
Requires that the receive be AWARE at the time he receives the goods that they are stolen.
If receiver only later finds out that they were stolen, they aren’t guilty of receiving stolen goods or any crime
Whether a liquidated damages provision (which includes non-refundable down payment) is enforceable
Must be a reasonable attempt at a fair compensation in event of breach, not penalty for failure to perform.
50% of purchase price would be penalty rather than fair compensation and would be invalid/unenforceable.
A law that restricts candidates’ ability to show up on ballots ALSO indirectly affects voters’ rights
This impacts the right to vote because of voter choice and political association under 1st and 14th A
Similarly:
- laws that effectively prevent independent or minor-party candidates from running: STRICT scrutiny
- but laws that impact filing deadlines/signature requirements: lower scrutiny
Arson
(CL vs. MPC)
Common Law
— the malicious (intentional or reckless disregard) burning of the dwelling house of another
— blackening/scorching is not enough
MPC
— purposely, knowing, recklessly causing a fire to ANY structure (including one’s own house). Burning/chat is not required.
Conveyed to his friend “for life, remainder to the children of my son.” At the time of conveyance, son was married but had no children.
What kind of interest do the children have?
Contingent remainder
— remainders can be vested or contingent.
— vested when (1) interest created in an ascertained person, and (2) not subject to a condition precedent
— remainder not possessing these characteristics = continent
Shifting or springing interests
— when a “VESTED” remainder is subject to complete defeasance by executory limitation. Blackacre “to B, but if B marries X, then to C.” C has shifting executory interest
A state’s collection of tax does NOT constitute an undue burden on commerce when what?
(1) interstate seller has a sufficient nexus with the taxing state
— seen through: seller maintains an office within the taxing state, sends staff into the state
— no sufficient nexus: if seller only sells through mail-order
Offers to plead guilty vs settlement offers
Admissibility
Offer to settle claim and its related statements are NOT admissible to prove claim validity, liability or amount.
Offer to plead guilty is not admissible to prove culpability
CEC: mediation proceeding also not admissible, but offer to plead guilty can come in
Statute of Frauds (needed for land sale contract) requirements
Description of property and grantee must be ascertainable
OK:
— “10 acres of the westmost boundary”
-FIND OTHER EXAMPLES
NOT OK:
— “to leaders of all churches in York County”
— “chosen and bounded by the buyer”
Teacher and Student released on bond. Upon request of DA, teacher asked student where he got the gun used in robbery. Student replied from cousin. Student’s attorney objected to this being offered into evidence.
5A protection against self-incrimination or 6A right to counsel?
5A applies to “custodial interrogations” or “testimonial statements”
— student was NOT in custody. Released on bond = not undergoing a police interrogation
Post-indictment:
— Miranda rights are NOT at issue. They only come in before indictment
—deliberate questioning without lawyer present is 6A violation
Four privacy torts
Disclosure of private facts
— D publishes private information about P
— that is highly offensive to a reasonable person
— AND not newsworthy
Intrusion into seclusion
— D invades P’s privacy
— in a highly offensive way
— where P has expectation of privacy
False Light
— D publishes false or misleading info about P
— creates a false impression about P
(Unlike defamation, doesn’t have to result in reputation harm. P’s own personal emotional harm is enough)
— that’s not newsworthy
Forth is appropriation of name and likeness
If one tenant in common agrees with neighbor to establish boundary between their parcels without other tenant in common’s knowledge, can the other tenant in common be bounded?
Yes a co-tenant may exercise sole control over parcel as long as he does not attempt to transfer any interest that belongs to the other co-tenant
Also co-tenant in sole possession need not give co-tenants notice of proper acts of control/management
When is co-tenant ousted? when possessor refuses to share possession, attempts to convey sole ownership to a third person, hostile
When homeowner has a “nondelegable” duty
It doesn’t mean that they’re strictly liable (which ONLY applies to commercial sellers, dangerous activities, wild animals)
Homeowners is liable under NEGLIGENCE for failing to ensure the work was done safely.
P sues manufacturer and pilot for (1) violation of a federal aviation statute and (2) negligence.
All parties are citizens of state A. Can D’s remove action to federal court?
Any action of which district courts have original jurisdiction CAN be removed without regard to the citizenship or residence of the parties.
— here, doesn’t matter that P and D aren’t diverse or that D’s are already located in the state A. Because it’s a federal question, Ds would have right to remove the action to federal court.
An estate/fee simple subject to a condition subject = “to restaurant owner, provided that no alcoholic beverages of any kind are served on the premises.”
Is grantor entitled to reclaim property?
No, because no power of termination (aka right of re-entry) was reserved
Note: reverter interest not subject to RAP but power of termination IS
Power of termination/right of re-entry MUST be explicitly stated in the conveyance.
Compromise/settlement offers and offers to pay medical expenses are inadmissible to show liability
But a refund to provide liability is admissible
President can enter into treaties with foreign nations (2/3 Senate needs to approve the treaty)
If US gov thereafter violates terms of treaty, what would be strongest constitutional argument that US gov’s act was permissible?
Treaty is supreme law of the land until it is superseded by a conflicting act of Congress — the last act in time controls.
Congress enacts legislation superseding the treaty (cuts off the treaty because it is enacted after), then US gov would not be required to comply with it. ‘
Note: valid and approved treaty cannot be superseded by international law. Can only be superseded by later Congressional enactment
An individual may not be punished or deprived of public employment for subversive group association unless what?
(1) she is an active member of a subversive organization
(2) she knows that the group has illegal aims
(3) and she has the specific intent to further those illegal ends (e.g. violent overthrow the government)
Political affiliation is not a suspect classification so EPC is not implicated
“At will” employees can have their jobs terminated because cannot be for unconstitutional reason
A written statement expressing declarant’s state of mind may be admitted to show his in-the-moment thoughts/plan at the time of writing.
However, such a statement is only admissible to prove declarant’s state of mind. Has to be declarant’s statement
Defendant’s fiancee’s authenticated letter wouldn’t be admissible as defendant’s statement or state of mind
6A right to jury trial (incorporated to states through 14A) vs. right to effective counsel
Defendants have a right to a jury trial only for serious offenses
— “Series offense” applies when imprisonment of more than 6 months
Right to counsel
— When imprisonment is involved, right to lawyer is there. Whether classified as petty offenses, misdemeanor, or felony offense.
Signs of ineffective counsel (D is deprived of 6A right to effective counsel)
What you need to show ineffective counsel:
(1) counsel was ineffective. Didn’t do any discovery / failed to respond to client / didn’t match standards
(2) AND but for counsel’s errors, result of the proceeding would have been different
Not a sign:
— lawyers CAN change legal strategy / trial strategy in a case without conferring with the client
After D has been formally charged / indicted, you’re usually in 6A right to counsel territory rather than 5A (custodial interrogations)
— informant working at direction of police trying to illicit info = breach of D’s 6A right to counsel
Shopper that enters a shop is an invitee at first, but if they walk past sign “Keep Out / No Admittance,” then they become a trespasser.
The warning sign itself meets the “reasonable care” due to a known trespasser.
Parents are generally not vicariously liable for the negligence of their children.
They’re typically only liable if their negligence is what caused/allowed child to act negligently towards someone else
ex: parents leave gun with bullets out (not in it’s locked box) within child’s reach
ex: they knew child has a tendency to travel down driveway into the street, and failed to stop the child (car on the street swerved to not hit the child and suffered injuries)
Congress has no authority to resolve disputes between states — this authority rests exclusively in judicial branch.
Article III gives SCOTUS original jurisdiction in all cases which a state is a party
Thus “a joint resolution of the houses of Congress resolving a dispute between New York and New Jersey regarding the ownership of Ellis Island” = unconstitutional
All emails were automatically deleted every 3 months to free up storage space.
When should court order? Are sanctions suitable?
Duty to preserve electronically store information arises when party knows or should know litigation is reasonably foreseeable.
— If emails can still be recovered, court may order the party to bear costs if it was responsible for deletion after duty to preserve arose.
— But if emails were deletion as part of ordinary course of business, BEFORE any duty to preserve arose, the party may not be required to pay
Wharton Rule
Vice principal bribed councilman to vote in favor of a specific policy proposal. Both are charged for bribery and conspiracy related to bribery.
Under the wharton rule, vice principal and principal are NOT convicted for conspiracy because there was no third person. Wharton rule requires: agreement involving an additional person not essential to the crime of bribery.
Modifications of service contracts
(Traditional vs. Modern Rule)
Traditionally (still the majority approach): modification of a contract where one party agrees to a lesser performance while rendering the same performance is NOT enforceable
— ex: landowner accepting 1.8k sq ft daycare center instead of the 2k sq ft center that contractor was obligated to build.
Modern approach: in the face of changed condition (e.g. price of some ingredient suddenly skyrocketed unexpectedly, or discovery of block of granite down in the soil) allows contract to be modified without traditional consideration.
— ex: landowner can accept reduced performance while still paying the same amount
Character evidence of victim offered in criminal case
(Self-defense exception)
In self-defense claims, D can use victim’s history of violent behavior AND specific past acts to show defendant’s state of mind and why defendant reasonably believed he was in danger
Manager takes the store’s money to gamble and pays the money + interest back
STILL EMBEZZLEMENT
D placed that money at risk by gambling = intent to deprive.
Removal is only available from state court to federal court.
No such thing that allows removal from federal court to state court
Parole evidence rule applies when a written agreement is partially or completely integrated. This means either it says “fully integrated” as a merger clause or that the doc is a complete and exhaustive statmenet of the agreement.
When the written document clearly refers to prior conversations (“as per our conversations…”) — this is an indication that document is not the complete agreement and NOT fully integrated.
Article IV Sec 2. Privileges and Immunities vs. 14A Privileges and Immunities
Article IV
— protects fundamental rights related to economic participation
Ex: state cannot require out-of-state worker to pay higher commercial licensing fee.
Ex: state cannot deny non-residents ability to sue within courts
Ex: states cannot bar non-residents from buying property
Ex: states cannot bar access to emergency services
BUT they can impose reasonable restrictions: reasonable waiting periods for residency-related benefits
14A
— only for U.S. citizens (not for corporation or noncitizen)
— protects a few federal rights
Ex: right to travel, right to petition fed government/Congress, right to access courts seek redress for grievances
List out intentional torts
And their valid defenses
Battery
Assault
False imprisonment
Trespass
IIED
They require purposeful conduct. Thus, defenses exist only when the act was justified
Valid Defenses:
— privilege (e.g. police officer using reasonable force to arrest suspect, merchant detaining shoplifter)
— self-defense (must be proportionate: you cannot shoot someone trying to slap you) (cannot be preemptive: punching someone because you think they’ll attack later)
In order to have standing, what are the 3 requirements?
(1) P must have suffered a concrete and particularized injury
(2) there must be causation between D’s conduct and P’s injury
(3) AND redressability must exist
TRO vs. PI
To obtain TRO, moving party must show:
(1) Movant will be irreparably harmed without the TRO
(2) the merits of the case weigh in favor of movant
(3) balances of hardships weigh in favor of P (outweighs harm to D)
(4) public interest considerations
TRO can be issued ex parte (without notifying the other party) if Movant can show irreparable harm and that P made reasonable efforts to notify D
Preliminary injunctions requires the same 4 elements as TRO
— CANNOT be issued ex parte
- D must be notified and given a chance to respond
Reasonable expectation of privacy:
— cell phone records
— home
— locked box in someone else’s home with you name on it
— cannot use drug-sniffing dog around exterior of house
No expectation of privacy:
— if neighbor’s consent to police viewing D’s property from neighbor’s land and them see drugs through the window
— ringleader does not have legitimate expectation of privacy in uncle’s home and thus cannot suppress the drugs that were in plain view in his uncle’s house that he was arrested in (search incident to arrest)
— CAN use drug-sniffing dog around vehicle
DUI checkpoint
— when being stopped at the checkpoint would be illegal
— when search would not be supported
Valid DUI checkpoint:
— does not require that officer stop every car
— but doesn’t give officer discretion
— there needs to be pre-set rules: like stop every 5 cars, every 10 cars, etc.
Also at a DUI checkpoint, police cannot make everyone get out of the car and search the inside without having reasonable suspicion
Searching Vehicles
— recent occupant rule
Even if D has been cuffed and detained inside police vehicle, police MAY search the car (1) if arrestee is within reaching distance of passenger compartment, or (2) if police believe car contains evidence of the arrest
Police can use deception to obtain consent to enter & search house
— that they’re a drug-buyer / posing as a delivery man
— they CANNOT falsely claim they have a warrant
Principal place of business on a temporary basis = sufficient for exercise of general PJ in that state
AKA company was foreign organization, but Pres moved to State A and confucted all affairs from State A with the intent to return to foreign country when centralized authority was back in power.
Cause of action arose entirely in the foreign country, BUT there’s still general jurisdiction (bc company is conducting all affairs) over the corporation in State A
Ordinarily impeachment evidence is NOT substantive evidence.
Limited cases where prior inconsistent statement could serve as both impeachment and substantive (would usually be of a party like defendant him/herself, and rarely ever like an expert witness)
— if it were made under oath in a formal proceeding
— made by a party-opponent
— falls within hearsay exception
IIED
One who through extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another
When does malicious prosecution attach?
Search conducted by warrant (which meant probable cause existed) is insufficient
Need arrest warrant or indictment for the proceeding to be considered commenced
Attractive nuisance doctrine
(1) landowner knows or should know that children are likely to trespass
(2) landowner knows or should know that trespassing children would be at risk of harm
(3) the children bc of their age cannot appreciate the danger
(4) burden of eliminating danger (e.g. preventing trespass by add a fence) is low compared to risk of harm
Joint tenancy vs tenants in common
Presumed form of co-tenancy if unclear:
Tenants in common
Joint tenant— each co-tenant owns an undivided interest in the whole property and has a right of survivorship. But the deed must say ”as joint tenants, with the right of survivorship”
Tenants in common— each co-tenant owns an equal right to posses the whole property
Joint tenancy vs tenancy by the entirety
JT may be unilaterally severed (and tenancy in common created thereby)
Tenancy by the entirety may not be severed by unilateral conveyance. The tenants must agree.
One guilty of embezzlement cannot be guilty of larceny
Because embezzlement means that one is already in lawful possession.
Larceny means you DONT have lawful position/it’s a trespassory taking
Even if there were other exits, if P doesn’t know about them, then false imprisonment exists
If P was a frequent visitor (e.g. parents who regularly stay and watch the kids), only teachers/principals/students knowing about the other exits is not enough
Principal would know that parents would be confined
Under minority American rule, landlord only has duty to deliver legal possession of the premises.
Tenant has the right to evict holdover tenant
Photograph is not a statement
Thus photograph is not hearsay
