Mn Flashcards
Justiciability
RAMPSEIA
S=ICR
Legislative Power
CCATSWFF
C=CIS via RB std
Executive Power
VEEPACT
A, Congress can jointly appt when there is no regulatory, rule making, or prosecutorial authority.
Federalism
DCC
Cannot disc. against out of state biz
(Facial = SS[NC])
(Effect/Incidental = IS[SRI]
EXCEPTION= MP, state controls entire industry
Immunity
States can’t sue or tax Feds
Feds/state CAN sue another state
Individual Rights
SS [NC]
RNA (equal protection treats ppl diff.)
VPARTS (fund. + 1A GA reg/taking rt)
(P=CAMPR) (A = undue burden)
IS [SRI]
GI
Speech if content neutral or at public forum
COMMERCIAL SPEECH
RB [RRL]
Speech if content neutral at Non-public forum
Religion
Establishment Clause (lemon test) - SPAIEE
Free Exercise Clause (neutral on practice of religion EVEN IF law has a discriminatory effect)
Pro DP - property right must vest (N + H)
Priv & Imm., treats non residents differently. No durational residency requirements
Priv or Imm. Concerns rt to travel interstate
5th Am - federal
14th Am - states
Offer
IS, but can be terminated by DLRCR,
but is irrevocable if FOUR
Acceptance
PMS Common law - mirror image rule UCC - construed liberally Material change to K terms Object in reasonable time period Offer limits acceptance
Confirmatory Memo is an exception to req that writing be signed by person against whom enf sought (10 days to object to conf memo)
Consideration
BFE or DP Valid: PEGDF Invalid: PPIG Accord + Satisfaction Quasi-K: constructed by courts to avoid unjust enrichment
Performance, Breach, and Discharge of Contracts
DARM RRNC
D=I$ I FP
AR = unequivocal
Modification (CL reqs new consideration)
Mod can be oral or written
Risk of loss
Reqs K = GF
Non-Conforming Goods
Conditions
Defenses to K Formation
SUP DUMMI
S = SoF = my legs
Exceptions: SW
Specially made goods
Written confirmatory memo 10 (acceptance)
U = undue influence
P = public policy, illegality
D = duress (physical | economic) U = unconscionabilty M = mistake (mutual | unilateral) M = misrepresentation (intentional | negligent | concealment) I = incapacity (age | mental)
K content and meaning
Parol Evidence COMES IN unless the K is fully integrated; but EVEN THEN it can come in to clarify and ambiguity.
Remedies
Dr. Lesp + LV C M
Damages. K price + costs - avoidance
Expectation. Put in same position but for breach.
Consequential. Arise indirectly. Must be reasonably foreseeable at time of formation, D knew of special circumstances and reasonably certain.
Restitution
Unjust enrichment, quasi K
Liquidated Damages
Can’t be a penalty, 10% of K value max. Will get actual damages instead
Equitable Specific Performance
Only available if monetary damages are inadequate (LAND Ks)
Not awarded for personal service Ks
UCC-Seller Remedies, Incidental Damages + the below: LV C M SCW
Lost Volume seller
Gets profits from lost sale.
Expected profit + Cost - payment for resale
Cover damages, diff btwn resale price and K price.
Market damages, diff btwn market price and K price.
Stop delivery
Withhold delivery
Cancel the K
UCC-Buyer Remedies
LV C M
Loss in value between goods promised and non-conforming goods that were accepted.
Cover damages
Diff btwn K price and substitute goods purchased in GF
Market damages, diff btwn market price and K price (if not in GF or no cover)
Third Party K Rights
IB vest upon MA DR or sue
Ass or Del valid unless MA PP P
Assignor/Delegator remains liable unless novation.
Incidental beneficiary - no rights.
Intended Beneficiary - rights vest upon
MA, DR, or sues to enforce.
Assignments and Delegations are VALID unless it:
- MA. Materially alters
- PP. against public policy
- Precluded by contract “VOID”
Assignee can sue assignor (wrongful revocation after giving consideration) or obligor (non-performance). Note that gratuitous assignments are revocable.
X (obligor) ———-> Y (assignor/delegator)
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Z (assignee/delegee)
Specific Intent Crimes (other)
LR LT FERSP FBA
L-larceny, trespassory taking and carrying away
the personal property of another with intent to
permanently deprive
R- force, intimidation, fear
LT - obtain possession by deception
F - obtain title by false statement
E - conversion of property duly in possession
RSP - knowingly receiving stolen property with intent to permanently deprive
F - forgery of a doc of legal significance
B - breaking and entering at night dwelling of another with intent to commit felony inside
A - intent to commit a battery or IRA/IB
General Intent Crimes
BRFKA + Manslaughter
Battery, unlawful application of force upon another person or their close belongings resulting in injury or offensive contact
IHOP
Rape
False Imprisonment
ICB:NE:PA
Kidnapping
Unlawful confinement or moving of a person by force
Arson
Malicious/Reckless (knew or should have) setting of fire to dwelling of another
Defenses to Crimes
IED SIMI
Intoxication (Voluntary, def to specific intent only)
(Involuntary, def to both)
Entrapment (previous acts, experience not indicated)
Duress (not a defense to intentional murder)
Self defense (self/others/property) reasonable belief, same level of force. NO duty to retreat.
Incapacity (mcNauten -
(Did not understand nature /quality)
Mistake (reasonable def to both)
(Unreasonable def to specific intent only)
Impossibility (if elements met, invalid)
Homicide (6)
Murder (4) + Manslaughter (2)
Murder (4)
IPK. Intentional, premeditated killing
IISBH. Intentional infliction of serious bodily harm
FM. Felony murder. F-BARRK that results in murder.
Depraved heart, reckless
Manslaughter (2)
Voluntary Manslaughter
Adequate Provocation
Heat of moment
No time to cool off
Involuntary
Negligent
Specific Intent Crimes (+ inchoate)
ASAC + Murder
Accomplice
Dual specific intent to assist, aid, facilitate and
That objective will be achieved
Withdrawal: Yes, if assistance withdrawn and effect mitigated.
Solicitation
Intent that another commit a crime.
Withdrawal: NO.
Merger: yes.
Attempt
Dual specific intent to commit crime + an overt act in furtherance (mere prep insufficient)
Withdrawal: NO
Merger: yes.
Conspiracy
Dual specific intent to enter into agreement and to achieve objective.
Withdrawal: yes, but only to additional crimes, not to the conspiracy itself.
Merger: No
Strict Liability Crimes
(Intent Irrelevant)
LBS
Liquor to minors
Bigamy
Statutory Rape
4th Am - search and seizure
GA REP PCW(FEDS) - SIA|PCH
GA of REP reqs PC + W(FEDS) unless SIA|PCH
Search GA gov agent search of location with reasonable expectation of privacy requires probable cause and a warrant: Fresh facts Exceed scope, cannot Detached magistrate Specific people and places
Notes:
1. IS. Illegal search will NOT automatically dismiss indictment.
2. PS. Protective Sweep can search for add’l criminals w/proof others present.
3. Exceptions to Warrant: SIA PCH
Stop (reasonable suspicion).
Frisk (reasonable belief armed and dangerous)
4. Dog sniff in public place is not a search
5. Border searches, no warrant needed
Exclusionary Rule
(WITH EXCEPTIONS)
Evidence obtained in violation of 4th, 6th, or 14th Am is INADMISSIBLE at trial and ALL derivative evidence is also inadmissible under the fruit of the poisonous tree doctrine.
EXCEPTIONS 1. Physical fruits derived from statement obtained in violation of Miranda 2. Police had independent source 3. Discovery was inevitable 4. Police relied in GF on defective warrant 5. D’s frees will restored through passage of time 6. Does not apply in front of GJ
5th Am - Miranda & Self Incrimination
CI LR VW
Custody, reasonable person would not feel free to leave
Interrogation, police attempting to elicit criminal response.
Lineups cannot be unnecessarily suggestive
Rt to counsel BEFORE charges or indictment
Voluntary statements, no Miranda req’d. Confessions must be voluntary under due process clause of 14th Am.
Waiver: knowingly and voluntarily
5th Am - Double Jeopardy
ASSND
Attaches when jury sworn in or for bench trials (first witness sworn in)
DJ NOT violated when:
- Separate Sovereigns (ok to be tried in different states and state v fed ct and vice versa)
- No final J or first trial not yet begun
- If retried on separate crime with distinct elements (overlapping elements violates DJ)
6th Am - Rt to Counsel AFTER formal charges (offense specific)
Lineups, right to counsel after indictment. Prelim hearings, arraignment, post charge lineup, guilty pleas, sentencing, felony trials or misdemeanor trials with possible imprisonment, overnight recesses, appeals as a matter of right, appeals of guilty pleas, Nolo contendre
Co-Ds can share counsel
Jail informant violates Rt to counsel, not Miranda
Guilty plea, voluntarily and intelligently
Rt to jury trial if sentence longer than 6 months
State trial w/12 need not be unanimous
Press may attend unless overriding interest
Rt to confront and X all Ws
Co-D confession can be used against other ONLY IF available to testify.
Out of court statement made during emergency are ADMISSIBLE.
GJ-exclusionary rule does not apply
GJ-no right to have counsel
W&E: Intestate Succession
Property NOT passing by a valid will is governed by a state’s applicable intestacy statute.
Intestacy, typically:
- Spouse gets 100%, Issue 0% (if all issue from that spouse (UPC)
- Surviving Spouse gets 50% Issue splits 50% (most states)
- If no spouse, issue splits 100%
- if no spouse and no issue, then parents get 100%, if no surviving parents then issue of parents (decedents siblings) split 100%
Assets pass by Per Capita at Each Generation
Jurisdiction:
Real property, where located.
Personal property, where decedent was domiciled.
W&E: Will Execution Requirements.
Will Execution Formalities
SWII + 2W. Signed writing by testator witnessed by at least 2 disinterested individuals.
State Exceptions: Interested W ok when he is an heir reduced to his intestate share OR another disinterested W was present so that there are still 2 disinterested Ws.
(UPC) SWII. Signed by the testator OR someone in the testators presence by testator’s direction; AND
Either signed by at least 2 disinterested witnesses (within a reasonable time after witnessing testator sign the will; OR be notarized.
“Within Testator Presence”
Majority view: ok if within line of sight.
UPC: ok if within range of the testators senses.
W&E: Will Execution Requirements.
Codicil
An instrument made AFTER a will is executed that modifies, amends, or revokes a will.
To be valid, same formalities (SWII + 2 disinterested Ws).
- If a codicil republishes a will, the will is deemed executed on the same date as the codicil.
- Codicil cannot republish an invalid will but it can cure an interested W issue.
W&E: Will Execution Requirements.
Holographic Will
A handwritten Will (or alteration to a will) that is NOT WITNESSED.
- only some states recognize, but require testator signature at the end of document.
- a valid holographic codicil revokes an earlier will to the extent it conflicts.
W&E: Incorporation by Reference
A bequest through an unattested memorandum is VALID if it meets requirements of incorporation by reference.
Wills main principals 1-5
I E R S C
Intestate Succession (GPS | CPA) Execution of valid will (SWI+W2 | HDIR) Revocation (PDD) Slayer statue + predeceased Bs (PSADA) Capacity issues (C NPID / UI SODA)
Wills 1
Intestate Succession
Evidence
Impeach W
Impeachment
All comes in unless conviction or prior bad act over 10 years unrelated to honesty
Evidence
Character
All character evidence stays out unless:
Civil (at issue via CDN)
Crim (D opens the door with RO, can X w/ROSA.
Specific Instances (typically goes to intent)
Motive
Intent
Mistake, lack of accident or.
ID, modus operandi
Common planEvidence
NonHearsay
Nonhearsay (Exempt)
LO (offer / acceptance )
EL (effect on listener, usually goes to knowledge or insanity)
Sworn
PIS
PCS
ID
OP - opposing party admission
Usually a party, jf a party said it, it comes in
Personal knowledge not necessary
Evidence
Hearsay Exceptions
Availability Immaterial
PE SOMBRA MDTRR
Distinguish RR from refresh recollection where Atty can show anything, but it is not read into evidence (SA:NRIE)
Evidence
Hearsay Exceptions
Declarant Unavailable
TDAPP
T - former testimony
D - dying declaration (CH:ID:Concerns cause)
A - statement against interest
Usually made by nonparty
Against pecuniary, penal, proprietary interests of declarant who made the statement.
Must have personal knowledge
Procured unavailability
Personal family history
